Citation Nr: 1328383 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-02 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected psychiatric disability or as secondary to coronary artery disease. 2. Entitlement to service connection for a lung disability, to include as secondary to service-connected psychiatric disability. 3. Entitlement to service connection for coronary artery disease. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in July 2011, when the issues were remanded for additional development. During the processing of the Board's July 2011 remand, an August 2012 RO rating decision granted service connection for posttraumatic stress disorder (PTSD) to include anxiety disorder. As that decision constituted a full grant of the Veteran's appeal for service connection for psychiatric disability, that issue is no longer in appellate status before the Board. This matter was again before the Board in November 2012, when two other service connection claims were denied (and therefore are no longer in appellate status) and the issues currently remaining on appeal were remanded for additional development. In April 2013, the Veteran submitted written correspondence to the Board explaining: "When filling out original file I told the V.A. guy about having a stent in heart & he wrote that up as hypertension, when really it was cardiovascular disease." Under the particular circumstance of this case, the Board considers the Veteran's expression of intent to establish service connection for his diagnosed coronary artery disease as reasonably encompassed in his appellate claim for service connection for hypertension. The current information and evidence of record is sufficient for an immediate grant of service connection for coronary artery disease at this time, as discussed below. The Board has recharacterized the remaining hypertension issue to more clearly reflect that this pending claim now includes a contention that the Veteran's hypertension is linked to the service-connected coronary artery disease such that service connection on a secondary basis must be considered. In this case, the Board has reviewed both the Veteran's physical claims file and the Veteran's electronic file through the "Virtual VA" system to ensure a complete review of the evidence. The issues of entitlement to service connection for hypertension and entitlement to service connection for a lung disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC FINDINGS OF FACT 1. During his active service, the Veteran served in the Republic of Vietnam and, thus, is presumed to have been exposed to herbicides. 2. It is presumed that the Veteran's coronary artery disease is due to exposure to herbicides in Vietnam. CONCLUSION OF LAW Coronary artery disease is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012); Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Analysis The present appeal includes the issue of entitlement to service connection for coronary artery disease. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arteriosclerosis and cardiovascular-renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). Exposure to herbicides is presumptively associated with certain specific disabilities and diseases listed at 38 C.F.R. § 3.309(e), should they have become manifest to a degree of 10 percent or more at any time after service (with an exception not applicable to this case). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson' disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (2012); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The Veteran's service personnel records reflect that he served in Vietnam during a pertinent period, and the fact of the Veteran's service in Vietnam has been further accepted by VA in that the RO's August 2012 rating decision granted service connection for posttraumatic stress disorder which had been claimed on the basis of stressor events during service in-country in Vietnam. Thus, it is presumed that the Veteran was exposed to herbicides during his period of active service. 38 U.S.C.A. § 1116(f). Post-service medical records clearly reflect a diagnosis of coronary artery disease, including most recently in a January 2013 VA hypertension examination report (stating in "other pertinent physical findings" that "VETERAN HAS CORONARY ARTERY DISEASE STATUS POST STENT 1999"). The Veteran has also submitted private medical records documenting details of his coronary angioplasty in November 1999 with details of disease featuring "99 ECCENTRIC STENOSIS" of the "LEFT ANTERIOR DESCENDING CORONARY ARTERY" and other details that appear consistent with the January 2013 VA examiner's finding of coronary artery disease. Ischemic heart disease has been added to the list of diseases associated with exposure to certain herbicide agents. Ischemic heart disease includes coronary artery disease, thus presumptive service connection for the Veteran's coronary artery disease based on herbicide exposure is established. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e) (2012); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The Board must presume that the Veteran's coronary artery disease is etiologically linked to his presumed exposure to herbicides during service in Vietnam. The Board finds no significant evidence to rebut these presumptions. Accordingly, service connection is warranted for coronary artery disease (as ischemic heart disease). In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran with respect to this issue is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The RO will assign a disability rating and effective date in the course of implementing this grant of service connection, and the Veteran will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). ORDER Entitlement to service connection for coronary artery disease is warranted. To this extent, the appeal is granted. REMAND Hypertension In April 2013, the Veteran submitted written correspondence to the Board explaining: "When filling out original file I told the V.A. guy about having a stent in heart & he wrote that up as hypertension, when really it was cardiovascular disease." Under the particular circumstance of this case, the Board considers the Veteran's expression of intent to establish service connection for his diagnosed coronary artery disease as reasonably encompassed in his appellate claim for service connection for hypertension. The Board has granted service connection for coronary artery disease, as discussed above. It remains the case that the Veteran is diagnosed with hypertension, as confirmed in the January 2013 VA hypertension examination report, and the Board finds that the claim for service connection for hypertension remains pending in appellate status. The Veteran's contentions essentially indicate that he believes his coronary artery disease and his hypertension are intertwined pathologies and he seeks to establish service connection for the entire "Cardiovascular disease," including as indicated in his April 2013 correspondence. Accordingly, a question has been raised in this appeal concerning whether service connection for the Veteran's hypertension may be warranted on a secondary basis, as secondary to the newly service- connected coronary artery disease. Initial consideration of the hypertension issue in light of the significant new grant of service connection for coronary artery disease should proceed at the Agency of Original Jurisdiction (AOJ); the AOJ shall have the opportunity to complete all necessary development associated with this claim under the changed circumstances. Lung Disability The appellate scheme set forth in 38 U.S.C.A. § 7104(a) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board a supplemental statement of the case must be furnished to the appellant, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304(c). A supplemental statement of the case was last issued in this appeal in March 2013. Afterwards, in April 2013, the Veteran submitted new evidence in support of his appeal. The new evidence includes VA medical records including the reports documenting significant surgery to remove a cancerous tumor of the lung in January 2013 and subsequent pathological study and medical reports extending into February 2013. Review of the claims-file, including Virtual VA, makes it apparent that these reports have never been otherwise added to the claims-file; these records were not a part of the actual evidentiary record considered at the time of the March 2013 supplemental statement of the case. Furthermore, these records did not exist at the time of the Veteran's January 2013 VA lung examination addressing the lung issue on appeal. As VA medical records are constructively of record when they come into existence, they were constructively submitted to the RO in January and February 2013; VA has a duty to ensure that their pertinent contents are actually part of the record before the adjudicators. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran has recently submitted his copies of these VA records, indicating his belief that they support his claim of entitlement to service connection for lung disability. The Board observes that the Veteran's lung cancer diagnosis is a relatively recent development in this case (the appeal previously focused upon disability associated with chronic obstructive pulmonary disease), and the VA medical records submitted by the Veteran concern the major surgical removal and pathological evaluation of the relevant tumor. This potentially pertinent evidence, constructively added to the record at the RO (but not actually included in the claims- file during RO consideration of the appeal) must be addressed by a supplemental statement of the case. Additionally, the indication that the Veteran has had additional VA treatment after the last official RO update of the set of VA treatment records in the claims-file should be followed-up upon with appropriate action to ensure that all pertinent VA treatment records are available for review in the claims-file. Action must be taken to ensure that the complete updated set of the Veteran's pertinent VA treatment records are available for review. As VA medical records are constructively of record and must be obtained, the RO should obtain outstanding VA treatment records (from the date of the last complete update of the claims-file's set of VA medical records through the present). See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain, and associate with the claims file, copies of all pertinent VA treatment records from the date of the last such update of the claims-file's set of VA treatment records to the present time. 2. After completion of the above and any further development deemed necessary by the RO/AMC (to include obtaining any new medical opinions indicated by the changed circumstances of this appeal and additions to the evidentiary record), the issues remaining on appeal should be readjudicated. The readjudication should specifically include consideration of whether service connection for hypertension is warranted as secondary to newly service-connected coronary artery disease. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs