Citation Nr: 1321776 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 08-38 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a heart condition, to include status post pacemaker implantation, atrial fibrillation and hypertensive heart disease, including as secondary to claimed anxiety and weight gain and service-connected hairy cell leukemia and arteriosclerotic CAD, status post MI. 2. Entitlement to a compensable initial rating for hairy cell leukemia. 3. Entitlement to an effective date prior to December 18, 2007 for the grant of service connection for arteriosclerotic CAD, status post MI. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active military duty from September 1966 to April 1969. The appeal comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, granting service connection for hairy cell leukemia, assigning an effective date of July 30, 2004, and assigning an initial disability rating of zero percent. In a September 2008 decision, the RO issued a correction of an apparent subsequent administrative error and confirmed the previously assigned effective date of July 30, 2004, for service connection for hairy cell leukemia. The zero percent initial rating remained unchanged. The appeal also arises from an August 2008 RO decision which, in pertinent part, denied service connection for a heart condition, to include status post pacemaker implantation and atrial fibrillation. Additionally, in an October 2011 rating decision the RO granted service connection for arteriosclerotic CAD, status post MI, with a 100 percent evaluation, effective May 14, 2008. In a November 4, 2011 rating decision, the RO granted an earlier effective date for arteriosclerotic CAD, status post MI, effective December 18, 2007. As will be further explained in the Remand portion of this decision, in a statement received by the RO in December 2011, the Veteran disagreed with the assigned effective date for that grant of service connection. The Veteran testified in a March 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board, in June 2012, requested a Veterans Health Administration (VHA) examiner opinion. A July 2012 VHA opinion has been obtained and associated with the claims file. This matter was previously before the Board in November 2012. The Board denied the claim for an effective date prior to July 30, 2004 for service connection for hairy cell leukemia. The Board remanded the claims for an increased rating for hairy cell leukemia and entitlement to service connection for a heart condition, to include status post pacemaker implantation and atrial fibrillation, for additional development. The Board notes that in February 2013, following the issuance of the November 2012 Board decision, the Veteran submitted additional evidence to the Board in regards to his hairy cell leukemia earlier effective date claim. The February 2013 Board decision on that issue is final. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100. As such, the Board currently cannot make any further decisions on that issue. The Board recognizes that the RO has specifically denied service connection for heart condition, including status post pacemaker and atrial fibrillation. However, as noted by the July 2012 VA medical opinion provider, the Veteran also has a diagnosis of hypertensive heart disease. The United States Court of Appeals for Veterans Claims (Court) has determined that the use of 'condition(s)' in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider 'the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim'). Therefore, the Board has recharacterized the issue on appeal as set forth on the front page of this decision to also encompass that disorder. As noted in the November 2012 Board decision, in a February 2012 statement, the Veteran withdrew his claims for service connection for stress and/or anxiety, a skin condition (purpura cutanea tarda), night sweats, and weight gain. Since that withdrawal, the Veteran has not initiated a new claim for any of those disorders. As such, those claims are not before the Board. The Board further notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional documents pertinent to the present appeal, in the form of additional VA medical records. However, the AOJ has reviewed and considered the additional evidence, as documented in the March 2013 supplemental statement of the case. The issue of entitlement to an initial increased rating for hairy cell leukemia 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 evidence of record shows that the Veteran's heart condition, to include status post pacemaker implantation and atrial fibrillation, developed secondary to his service-connected arteriosclerotic CAD, status post MI. 2. The evidence of record shows that the Veteran's heart condition, to include hypertensive heart disease, is not related to his active military service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a heart condition, to include status post pacemaker implantation and atrial fibrillation, as secondary to service-connected arteriosclerotic CAD, status post MI, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310 (2012). 2. The criteria for the establishment of service connection for a heart condition, to include hypertensive heart disease, and including as secondary to service-connected hairy cell leukemia and arteriosclerotic CAD, status post MI, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In this case, the Board is granting in full the benefit for the Veteran's claim for service connection for a heart condition, to include status post pacemaker implantation and atrial fibrillation, sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. In regards to the claim for service connection for a heart condition, to include hypertensive heart disease, VA has met the duty to notify and assist the claimant in substantiating this claim for VA benefits, as provided by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim. Proper notice will inform the Veteran of what evidence VA will seek to provide, and of what evidence the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2011). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. Here, VA satisfied the VCAA duty to notify by way of a January 2013 letter sent to the Veteran that fully addressed all of the notice elements and was sent prior to the initial RO decision in this matter. Through the letter, VA informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. VA also informed him that his service connection claim must be supported by evidence indicating a current disability, evidence that the injury or disease was incurred or aggravated during service, and medical evidence of a nexus between the current disability and the in-service injury or disease. VA informed him that VA would seek to provide federal records and that it was his responsibility to support his claim with appropriate evidence, though VA would help him obtain records from any non-federal sources. VA also informed the Veteran that service connection can be awarded on a secondary basis, when a disorder is either caused or aggravated by a service-connected disability. That letter also included notice with respect to the Dingess requirements, of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Although that notice was not provided until after the initial adjudication of the claim, the claim was subsequently readjudicated in a March 2013 supplemental statement of the case. Thus any timing error was cured by the readjudication of the claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With regard to records, VA has associated with the claims folder the Veteran's service treatment records, pertinent VA medical records and private medical records identified by the Veteran. The Veteran has not indicated that there exist any records of VA or private VA medical treatment relative to this claim that are not already in the claims file. The Veteran also provided testimony to the undersigned Veterans Law Judge in March 2012. The development directed by the Board in the November 2012 remand has also been accomplished. The agency of original jurisdiction (AOJ) provided the Veteran appropriate notice in January 2013. The AOJ also afforded the Veteran a new VA medical examination in February 2013. The Veteran's claim was also previously considered a June 2012 VHA by a VA medical opinion provider. Those VA medical opinions provided specific medical opinions pertinent to the issue on appeal and findings sufficient to make a decision. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Law Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Inasmuch as the Veteran does not have a disease recognized as chronic under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are inapplicable. 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. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears) already mentioned, etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease [including but not limited to acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease, (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina], all chronic B-cell leukemias (including but not limited to hairy cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. Neither a heart condition to include status post pacemaker implantation nor atrial fibrillation is among those diseases for which presumptive service connection is available. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Claims based on Agent Orange exposure are unique in that entitlement is based on an analysis of scientific evidence, ordered by statute. 38 U.S.C.A. § 1116(b). The Agent Orange Act of 1991 (in part) directed the Secretary of Veteran Affairs to enter into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. Whenever the Secretary determines that a positive association exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he must publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of NAS reports and all other sound medical and scientific information and analysis available to the Secretary. See 38 U.S.C.A. § 1116(b)-(c). The Secretary has reiterated that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See 75 Fed. Reg. 32,540 (June 8, 2010). Based on the NAS committee report, Veterans and Agent Orange: Update 2008, and the Secretary added additional disorders to the list of those for which the presumption of service connection is available. See 75 Fed. Reg. 52,303 (Aug. 31, 2010). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Merits of the Claim A. Factual Background In December 2007, the Veteran filed a claim for service connection for a heart disorder secondary to his service-connected hairy cell leukemia. In an August 2008 rating decision, the RO denied service connection for heart condition (heart attack, including status post pacemaker, and atrial fibrillation) as secondary to the service-connected non Hodgkin's lymphoma (hairy cell leukemia) and/or stress and anxiety or weight gain. In an October 2011 rating decision, the RO granted service connection for arteriosclerotic coronary artery disease (CAD), status post myocardial infarction (MI) associated with herbicide exposure, with a 100 percent evaluation, effective May 14, 2008. In a November 2011 rating decision, the RO granted a December 18, 2007 effective date for CAD, status post MI, based on the date his claim was received. The Board notes that VA considers the Veteran's service-connected CAD and status post MI to be ischemic heart disease. 38 C.F.R. § 3.309(e). During his March 2012 Board hearing, the Veteran made clear that even though the RO had already granted him service connection for a heart condition (specifically CAD, status post MI) he wanted to pursue his claim for service connection for a heart condition, including pacemaker insulation and atrial fibrillation. At that time, the Veteran claimed that his heart condition developed due to stress from having hairy cell leukemia. In a January 2007 statement, the Veteran had also claimed that it developed due to his hairy cell leukemia. The Veteran's service treatment records do not document any complaints of, or treatment for, a heart condition. The Veteran served in Vietnam from January 1968 until April 1969, as documented in the response to a December 2005 VA request for information. In May 2002, Dr. Panossian found that the Veteran had paroxysmal atrial fibrillation with rapid ventricular response. Subsequent private medical records document continued treatment for a heart condition, including paroxysmal atrial fibrillation and pacemaker implantation. For example, in a January 2004 private medical record, Dr. J. Narkiewicz-Jodko found that the Veteran had tachycardia-bradycardia syndrome, with paroxysmal atrial fibrillation, status post permanent pacemaker implantation in October 2002, clinically stable. In May 2008, the Veteran underwent a VA examination for hemic disorders, which included a review of the claims file. The examiner noted the Veteran's reported history of treatment for intermittent atrial fibrillation and pacemaker implantation. The VA examiner diagnosed the Veteran with arteriosclerotic CAD, with history of MI, chronic recurring atrial fibrillation, and noted that the Veteran had a pacemaker implanted on October 19, 2002 to control ventricular weight. In January 2010, the Veteran underwent a VA heart examination, which included a review of the claims file. The VA examiner diagnosed the Veteran with CAD with previous history of MI, chronic recurring atrial fibrillation. In July 2012, the Board obtained a VHA. The VA medical opinion provider diagnosed the Veteran with several medical problems, including paroxysmal fibrillation detected on pace maker and tachy-brady syndrome requiring placement of dual chamber pace maker. The examiner also noted hypertensive heart disease, identified in June 2007. The VA medical opinion provider noted that hypertensive heart disease (first reported in June 2007) and that preserved ejection fraction, mild-moderate left ventricular hypertrophy which in the absence of significant valvular heart disease is usually caused by poorly treated hypertension. The July 2012 VA medical opinion provider found that it is "less likely that any of the patient current heart diseases is caused by or aggravated by his diagnosis of hairy cell leukemia, as upon literature review there were no prospective studies or data that supported direct correlation." Another VA examination with opinion was requested as the July 2012 opinion included statements and conclusions to the effect that the Veteran did not have significant lasting heart muscle damage from a likely MI in May 2002. Other discrepancies were noted with statements made by this examiner and the current rating based on the SPECT nucleotide stress test METs score. Additional information was required to sort out the medical opinion provided. In February 2013, the Veteran underwent a heart conditions VA examination, which included a review of the claims file. The VA examiner diagnosed him with CAD, an implanted cardiac pacemaker and atrial fibrillation, chronic. The February 2013 VA examiner found that the Veteran's atrial fibrillation was caused by his ischemic heart disease. The examiner noted that the Veteran had constant cardiac arrhythmia (atrial fibrillation). The February 2013 VA examiner opined that it is as likely as not (50 percent or greater probability) that the pacemaker required for his Brady-Tachy was caused by his atherosclerotic CAD with history of MI. The VA examiner explained that the common practice with Brady-Tachy syndrome is to treat worsening bradycardia with drugs that slow the fast heart rates, which also keep working when the rates become too slow. The pacemaker thus provides a guaranteed safe minimum heart rate and prevents symptomatic profound bradycardia. The examiner also noted that the condition was found at the time of the initial 2002 presentation of the ischemic heart disease. The February 2013VA examiner also found that it is as likely as not (50 percent or greater probability) that the atrial fibrillation was caused by his ischemic heart disease. The examiner explains that atrial fibrillation was diagnosed at the time the Veteran presented with symptoms of breathlessness and the ischemic heart disease-myocardial infarction was diagnosed. The examiner further noted that atrial fibrillation arrhythmia commonly occurred in patients with ischemic heart disease and that review of the medical evidence indicated that it was caused by the atherosclerotic CAD. B. Analysis for a Heart Condition, to include Hypertensive Heart Disease The Board finds that to the extent the Veteran may be claiming service connection for hypertensive heart disease as part of his claim for service connection for a heart condition, such a claim is not supported by the evidence of record. The Veteran meets the first factor for direct service connection, having a current diagnosis of hypertensive heart disease. However, there is no evidence that it was incurred or aggravated during service or medical evidence of a nexus between it and service. The Veteran has not claimed that he had that disorder in service. Service treatment records do not document any complaints of, or treatment for, hypertensive heart disease. Furthermore, the medical evidence documents that the Veteran did not start to have those heart conditions until decades after service. Indeed the July 2012 VHA medical opinion provider noted that it was first reported decades following service. Rather, the July 2012 VHA medical opinion provider, who provided the only competent medical opinion on the question, found that it developed years after service due to a non-service-connected disorder. As such, service connection on a direct basis is not warranted. 38 C.F.R. §§ 3.303(a), 3.309. Additionally, service connection on a presumptive basis due to Agent Orange exposure is not warranted. Service connection for ischemic heart disease [including but not limited to acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease, (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina] will be presumed on applicable herbicide exposure. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). However, the Veteran is already service-connected for CAD, status post MI (ischemic heart disease). Hypertensive heart disease, however, is not among those diseases for which presumptive service connection is available. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Veteran cannot be service connected for a disorder secondary to a non-service-connected disorder, including claimed weight gain and anxiety. Moreover, the July 2012 VA medical opinion provider noted that hypertensive heart disease such as the Veteran's was usually caused by poorly treated hypertension (a non-service-connected disorder). As previously noted, in February 2012 the Veteran withdrew his claims for service connection for stress and/or anxiety and weight gain. The Veteran has not subsequently filed new claims. As such, service connection on a secondary basis is also not warranted. 38 C.F.R. § 3.310(a). To the extent that the Veteran contends that his heart condition, to include hypertensive heart disease, is due to his service-connected hairy cell leukemia, no competent medical evidence supports his claim. The Veteran is certainly competent to report his own symptoms, or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, can opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, matters of determining medical etiology are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant is not shown to be other than a layperson without appropriate medical training and expertise to competently render such an etiology opinion on complicated medical issues involving cancer and the heart, the lay assertions in this regard have no probative value. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). The July 2012 VHA medical opinion provider supplied the only competent medical opinion on the question of service connection secondary to hairy cell leukemia. He found that it was less likely that any of the Veteran's current heart diseases was caused or aggravated by his diagnosed hairy cell leukemia. He then explained that after literature review, there were no prospective studies or data that supported direct correlation. As such, there is no competent medical nexus evidence of record supportive of finding a relationship between the service-connected hairy cell leukemia and the currently claimed heart condition. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 58. The Veteran's claim for service connection for a heart condition, to include hypertensive heart disease, is denied. C. Analysis for a Heart Condition, to include Status Post Pacemaker Implantation and Atrial Fibrillation Direct service connection for a heart condition, to include status post pacemaker implantation and atrial fibrillation, is not supported by the record. The Veteran meets the first factor for service connection, of having current diagnoses of those disorders. However, there is no evidence of record to support finding the second factor, of medical evidence or lay testimony that the disease was incurred or aggravated during service. The Veteran has not claimed that he had those disorders in service. Also, service treatment records do not document any complaints of, or treatment for, either disorder. Furthermore, the medical evidence documents that the Veteran did not start to have those heart conditions until decades after service. Also, there is no medical evidence of record of the third factor-of a nexus between the current disability and an in-service injury disease. 38 C.F.R. § 3.303(a). As previously noted, service connection for ischemic heart disease [including but not limited to acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease, (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina] will be presumed on applicable herbicide exposure. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). However, the Veteran is already service-connected for CAD, status post MI (ischemic heart disease). A heart condition, to include status post pacemaker implantation or atrial fibrillation, is not among those diseases for which presumptive service connection is available. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). As such, entitlement to presumptive service connection for a heart condition, to include status post pacemaker implantation or atrial fibrillation, as secondary to herbicide exposure, is also not warranted. The Board notes that service connection is also not warranted as secondary to anxiety or weight gain. The Veteran is not service-connected for either anxiety or weight gain. As such, service connection secondary to either non-service-connected disorder is not possible. 38 C.F.R. § 3.310(a). As previously noted, in February 2012 the Veteran withdrew his claims for service connection for stress and/or anxiety and weight gain. Although the agency of original jurisdiction (AOJ), in January 2013, contacted the Veteran (as directed by the November 2012 Board remand instructions) and informed him of how to support a claim for service connection for anxiety, the Veteran has not subsequently file such a claim. As such, a claim for service connection for anxiety is not pending at this time. The Board also notes that as the Veteran's heart condition claim is being granted on a different basis, as will be explained herein, the Board's current consideration of this claim would not prejudice him even if a new anxiety claim has been or will be filed. Service connection as secondary to the service-connected hairy cell leukemia is also not warranted. The Veteran has claimed that his heart condition, to include status post pacemaker implantation and atrial fibrillation, is due to his service-connected hairy cell leukemia. As for the lay assertions of record, the Board notes, as discussed above, that the Veteran is competent to report his own symptoms and observations, but is not competent in determining the medical etiology specific to his claimed disorders. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336; Jones, 7 Vet. App. at 137-38; See, e.g., Bostain, 11 Vet. App. at 127. The only competent medical opinion on the question of service connection secondary to hairy cell leukemia of record is the July 2012 VHA medical opinion. The medical opinion provider found that it was less likely that any of the Veteran's current heart diseases are caused or aggravated by his diagnosed hairy cell leukemia. He also explained that after literature review, there were no prospective studies or data that supported direct correlation. There is thus no competent medical nexus evidence of record supportive of finding a relationship between the service-connected hairy cell leukemia and the currently claimed heart condition. The Board finds, however, that the record supports finding that service connection for a heart condition, to include status post pacemaker implantation and atrial fibrillation, is warranted, as secondary to the service-connected arteriosclerotic CAD, status post MI. In a competent medical opinion, following examination of the Veteran and a review of the claims file, the February 2013 VA examiner found that the Veteran's atrial fibrillation was caused by his service-connected ischemic heart disease. As previously noted, the service-connected arteriosclerotic CAD, status post MI is ischemic heart disease. That VA examiner also explained that the pacemaker was required for the Veteran's Brady-Tachy, which was caused by his atherosclerotic CAD, with a history of MI. The Board notes that although service connection for a heart condition, to include status post pacemaker implantation and atrial fibrillation, is warranted, when rating the disability the anti-pyramiding provision of 38 C.F.R. § 4.14 will apply. That provision states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Veteran does not warrant service connection on any basis other than as secondary to his service-connected for CAD, status post MI. The Board again notes that effective date of the grant of service connection for CAD, status post MI was December 18, 2007. Based on a review of the relevant evidence discussed above and giving the benefit of the doubt to the Veteran, the Board finds that the competent medical evidence of record supports finding that service connection is warranted for a heart condition, to include status post pacemaker implantation and atrial fibrillation, as secondary to the service-connected arteriosclerotic CAD, status post MI. ORDER Service connection for a heart condition, to include status post pacemaker implantation and atrial fibrillation, as secondary to service-connected arteriosclerotic CAD, status post MI, is granted. Service connection for a heart condition, to include hypertensive heart disease, is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As noted in the Introduction section of this decision, the RO (in an October 2011 rating decision) granted service connection for arteriosclerotic CAD, status post MI, with a 100 percent evaluation, effective May 14, 2008. The RO then granted (in a November 2011 rating decision) an earlier effective date of December 18, 2007 for that disability. In a statement received by the RO in December 2011, the Veteran disagreed with the assigned effective date for that grant of service connection for arteriosclerotic CAD, status post MI. To date, the Veteran has not been issued a Statement of the Case (SOC) for the issue of entitlement to an effective date prior to December 18, 2007 for the grant of service connection for arteriosclerotic CAD, status post MI. Under the circumstances the Board has no discretion and must remand this matter for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999); Fenderson v. West, 12 Vet. App. 119, 131-132 (1999). The Board notes that the Veteran (in the statement received by the RO in December 2011) also disagreed with the assigned disability rating of 100 percent for the service-connected arteriosclerotic CAD, status post MI. However, given that the Veteran already received the maximum rating possible for that disability, such a disagreement would be moot. Similarly, in that statement the Veteran indicated disagreement with the effective date and rating for hairy cell leukemia. However, at that time, both of those hairy cell leukemia claims had already been perfected to the Board (but not decided). As such, those statements were also moot, as those claims were already appealed at that time. The Veteran also contends that an initial, compensable disability rating is warranted for his service-connected hairy cell leukemia. The Board previously remanded this matter in a November 2012 remand for further development. Specifically, in regards to the current increased rating claim, the Board requested a retrospective examination to address the current residuals of the Veteran's hairy cell leukemia, and to address residuals as have been present since the July 30, 2004 (the effective date of the grant of service connection for hairy cell leukemia). The Board also requested that the VA examiner address whether the Veteran has any other residuals of his hairy cell leukemia, employability and the possibly flare-ups. The development directed by the Board in its last remand was not accomplished. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the AOJ provided the Veteran a VA examination in February 2013, the VA examiner did not provide the retrospective opinion requested and answer all the questions asked by the Board. As such, the AOJ should obtain an addendum medical opinion from the February 2013 VA examiner to provide a medical opinion that addresses those matters. If the February 2013 VA examiner is unavailable, the AOJ should refer this matter to another appropriate medical professional to provide the requested opinion. The Board notes that the last VA medical records associated with the Veteran's claim (in the Virtual VA claims file) were from July 2011. Therefore, while on remand, VA treatment records from the White City and Klamath Falls VA medical centers, dated from July 2011 to the present should also be obtained for consideration in the appeal. 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following actions: 1. A Statement of the Case should be issued to the Veteran concerning the claim of entitlement to an effective date prior to December 18, 2007 for the grant of service connection for arteriosclerotic CAD, status post MI. The Veteran should be advised of the necessity of filing a timely substantive appeal if he wants the Board to consider the issue. 2. The AOJ should obtain VA treatment records from the White City and Klamath Falls VA medical centers (and any other applicable VA medical centers) dated from July 2011 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. 3. After all records have been associated with the claims file, the AOJ should arrange for the February 2013 VA examiner to review the claims file (including any pertinent records in Virtual VA) and a full copy of this REMAND, and issue an addendum opinion. If the February 2013 VA examiner is unavailable, the AOJ should arrange for another appropriate medical professional to provide an addendum opinion. (a) The VA medical opinion provider should determine the extent and severity of any residuals that have been present since July 30, 2004 to the present. The opinion provider should specifically note any time periods (from July 30, 2004 to the present) when: (i) the hairy cell leukemia was an active disease or in a treatment phase, (ii) the Veteran had anemia (hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia) with: (1) periods with documented hemoglobin levels (of 10gm/100ml or less, 8gm/100ml or less, 7gm/100ml or less, or 5gm/100ml or less) and (2) periods when it was asymptomatic or symptomatic (and if so what symptoms), and/or (iii) the Veteran had aplastic anemia with periods requiring (1) continuous medication for control, (2) transfusion platelets (and if so the frequency of such transfusions) and/or (3) recurring infections (and if so their frequency). (b) The examiner should specifically address the Veteran's complained-of conditions and symptoms which the Veteran attributes to his hairy cell leukemia. This should include whether the asserted purpura on his legs and associated burning and itching are residuals of hairy cell leukemia and its treatment or alternatively attributable to any other disorders. (c) If possible, the VA medical opinion provider should assess the level of functional impairment due to the hairy cell leukemia and identified residuals (if any), including particularly their impact on work and work-like functioning. (d) To the extent possible, the VA medical opinion provider should assess the extent of additional disability or impairment in functioning during episodes of flare-up (if any), and the frequency and duration of these episodes. A clear explanation for all opinions should be provided, along with a discussion of the facts and medical principles. 4. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs