Citation Nr: 1323054 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-29 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a hypercoagulability disorder, Factor Leiden 5 mutation and protein C and S deficiency, to include as due to in-service herbicide exposure and/or service-connected coronary artery disease and/or right renal artery stenosis. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran provided testimony at a hearing before a Decision Review Officer in October 2009. A transcript of this hearing has been associated with the Veteran's VA claims file. In April 2011, the Board granted service connection for coronary artery disease, as a result of in-service herbicide exposure, but remanded the claims for service connection for hypertension, a hypercoagulability disorder (Factor Leiden 5 mutation and protein C and S deficiency), and a genitourinary disorder manifested by bladder discomfort, for additional development. In November 2012, the Board granted service connection for right renal artery stenosis, and again remanded the issues of service connection for a genitourinary disorder other than right renal artery stenosis, hypertension, and a hypercoagulability disorder (Factor Leiden 5 mutation and protein C and S deficiency). In May 2013, the agency of original jurisdiction (AOJ) granted service connection for hypertension and bilateral renal infarcts, with chronic renal insufficiency (a genitourinary disorder other than right renal artery stenosis), such that the only remaining issue on appeal before the Board is entitlement to service connection for a hypercoagulability disorder, Factor Leiden 5 mutation and protein C and S deficiency. As detailed below, a remand is again required regarding this issue. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals additional VA treatment records not contained in the paper claims file, which have been considered by the AOJ in a September 2012 supplemental statement of the case. 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 In November 2012, the Board requested an addendum medical opinion to a September 2012 VA opinion regarding the Veteran's hypercoagulability disorder, Factor Leiden 5 mutation and protein C and S deficiency. Specifically, the Board asked that the examiner opine on whether it was at least as likely as not that the Veteran's hypercoagulability disorder, Factor Leiden 5 mutation and protein C and S deficiency was subject to, or aggravated by, a superimposed injury during service, to include exposure to herbicides, that resulted in additional disability. While not specifically requested of the examiner, the Board also noted in the body of the Remand that an opinion regarding whether the Veteran's service-connected right renal artery stenosis aggravates the hypercoagulability disorder was necessary to decide the claim. In December 2012, an addendum opinion was obtained. The examiner restated the Board's inquiry as whether "it was at least as not that the Veteran's hypercoagulopathy state aggravated a superimposed injury during service including herbicide exposure." Such misstates the Board's inquiry. The examiner thereafter stated that there was no history of hypercoagulopathy while in service and there was no continuity of symptoms between exposure to Agent Orange and hypercoagulopathy. In this regard, he noted that Leiden 5 mutation and protein C and S deficiency did not become apparent in the Veteran's medical records until 2011 when he had deep vein thrombosis. Leiden 5 mutation and protein C and S deficiency are genetic disorders. The examiner further stated that there was no evidence of an association of herbicide exposure and hypercoagulopathy. Therefore, he concluded, it is not likely that there is any relationship of herbicide exposure and the hypercoaguable state. As indicated in the Board's prior remand, the VA examiner in July 2011 indicated that this condition is a congenital defect. Congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9. Therefore, the evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability. VAOPGCPREC 82- 90 (July 18, 1990). While the December 2012 VA examiner found that there was no relationship between the Veteran's hypercoaguable state and his exposure to herbicides, he did not specifically address whether such had been subject to a superimposed disease or injury during service, to include herbicide exposure, that resulted in additional disability. As such, an addendum opinion regarding such inquiry should be obtained. Additionally, the examiner should also be requested to provide an opinion as to whether the Veteran's service-connected right renal artery stenosis aggravates the hypercoagulability disorder. Additionally, while on remand, the Veteran should be provided with proper VCAA notice regarding the secondary aspect of his claim of entitlement to service connection for a hypercoagulability disorder, Factor Leiden 5 mutation and protein C and S deficiency. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for a hypercoagulability disorder, Factor Leiden 5 mutation and protein C and S deficiency, as secondary to his service-connected coronary artery disease and/or right renal artery stenosis. 2. The Veteran's claims file should be returned to the December 2012 VA examiner for an addendum opinion. If the examiner is unavailable, the opinion should be obtained from another appropriate medical professional. The claims file and a copy of this Remand must be made available to the examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the addendum opinion. Following a review of the claims file, the examiner should offer an opinion on the following: (A) Is it at least as likely as not that the Veteran's hypercoagulability disorder, Factor Leiden 5 mutation and protein C and S deficiency was subject to a superimposed injury during service, to include exposure to herbicides, that resulted in additional disability? If so, please identify the additional disability. (B) Is it at least as likely as not that the Veteran's right renal artery stenosis aggravated his hypercoagulability disorder, Factor Leiden 5 mutation and protein C and S deficiency? A complete rationale should be provided for the opinion given. The opinion should be based on examination findings, historical records, and medical principles. In offering the opinion, the examiner must consider the full record. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim 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 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).