Citation Nr: 1331082 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-16 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart condition, to include as secondary to PTSD and/or herbicide exposure. REPRESENTATION Appellant represented by: Michael Kelley, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Philadelphia, Pennsylvania, that denied service connection for posttraumatic stress disorder (PTSD), and an October 2008 rating decision that denied service connection for a heart condition, to include as secondary to PTSD and/or herbicide exposure. In July 2010, the Veteran testified at a hearing before the undersigned at the Philadelphia RO. A transcript of this hearing is of record. In January 2011, the appeal was remanded by the Board to the Philadelphia RO for additional development. The record reflects that in or around November 2011, the Veteran moved to Florida. Jurisdiction is now with the St. Petersburg, Florida RO. It is also noted that in a November 2012 decision, the RO granted service connection for posttraumatic stress disorder and assigned a 50 percent evaluation effective December 14, 2006. The Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran thereafter filed a notice of disagreement (NOD) and that further action is pending at the RO. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (the Court) held that where a notice of disagreement (NOD) is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Here, however, the RO has acknowledged the receipt of a NOD. Accordingly, the facts of this case differ from those of Manlincon v. West, and as such, remand pursuant to Manlincon is not warranted. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. The appeal is REMANDED to the St. Petersburg RO. VA will notify the appellant if further action is required. REMAND As a result of actions that took place subsequent to the Board's January 2011 Remand, additional development is required to fulfill VA's duty to assist set forth in 38 C.F.R. § 3.159 (2012). The Veteran seeks service connection for a heart condition which he claims is related to military service, to include exposure to herbicides; or in the alternative, is secondary to now service-connected PTSD. Additional VA treatment records from VA medical center Coatesville indicate in May 2008 the following: "SVT= echo ordered, patient followed by Lordes Hospital in Wilingsboro, N.J., continue diltiazem 30 mg PO once daily. Episode on 4/17, seen at Brandywine Hospital, Digoxin and aspirin added, 3.5g salt diet." Although records from Brandywine Hospital have been obtained, there appear to be outstanding relevant records from Lordes Hospital that have not been associated with the claims folder. These should be obtained prior to appellate review. Additionally, in the January 2011 Remand, the Board ordered that an examination be conducted in order to determine the exact nature of any cardiac disease present during the pendency of the claim and whether it could be classified as ischemic heart disease, as well as whether any such disease was related to service. The examiner was asked to state "whether it is at least as likely as not (i.e., probability of 50 percent); that the Veteran's heart condition: had its onset during active service; is otherwise related to service, including due to herbicide exposure; or is due to and/or permanently increased in severity beyond its natural progression due to the psychiatric disorder." The examination conducted in July 2012 included a diagnosis of paroxysmal supraventricular tachycardia, resolved with treatment, along with a finding that it was not ischemic heart disease. The examiner noted that the Veteran's heart condition was successfully treated by electrical ablation in 2008. The examination report did not include an opinion as to whether there was any heart disease present during the pendency of the claim that is secondary to PTSD. Finally, the Board notes that the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he provide or authorize the release of any records that are not already associated with his claims folder, including medical records from Lordes Hospital. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Then, the claims folder should be provided to the VA examiner who conducted the July 2012 VA examination. The examiner should be requested to review the claims folder and provide an addendum in which a response is provided to the following questions: a. Is there a 50 percent or better probability that any heart disease present during the pendency of the claim, including SVT, is due to his service-connected PTSD. Please provide a complete explanation for the opinion. b. Is there a 50 percent or better probability that any heart disease present during the pendency of the claim, including SVT, is aggravated (i.e., increased in severity) beyond its natural progression. Please provide a complete explanation for the opinion. c. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that any heart disease present during the pendency of the claim, including SVT, is related to the Veteran's military service, to include his presumed exposure to herbicides while serving in the Republic of Vietnam. In this regard, it is noted that even if the Veteran does not have ischemic heart disease, service connection may still be warranted if he has or had a heart disorder that is related to herbicide exposure by competent evidence. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). If the July 2012 examiner is unavailable, the claims folder should be reviewed by another examiner with appropriate expertise who should be requested to provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 3. The RO should also undertake any other development it determines to be warranted. Then, the RO should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the case is returned to the Board for further appellate action, if otherwise in order. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. 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). _________________________________________________ S. S. TOTH 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).