Citation Nr: 1334867 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-18 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide exposure in service. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to August 1971 and from May 1973 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for ischemic heart disease. Although the Veteran had requested a hearing before a member of the Board, that request was withdrawn because he was incarcerated and would be unable to attend. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has ischemic heart disease as a result of herbicide exposure in service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 that service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307 (2013). The Veteran's records reflect service in Vietnam, and therefore herbicide exposure is conceded. If a veteran was exposed to herbicide agents during service, certain diseases shall be service-connected if the requirements of 38 C.F.R. 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to add certain conditions, including and ischemic heart disease, to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202-53216 (August 31, 2010). In this case, herbicide exposure has been conceded. However, the available evidence does not reflect a current diagnosis of ischemic heart disease. The Veteran contends that treatment records from the correctional facility where he was incarcerated contain such a diagnosis. Treatment records obtained from the Auburn Correctional Facility, Elmira Correctional Facility, and Oneida Correctional Facility for the period dated October 1999 through September 2009 contain laboratory findings of elevated cholesterol and triglycerides, but do not contain any diagnoses related to ischemic heart disease. The RO attempted to obtain additional records from the Oneida Correctional Facility. A January 2011 response indicated that the Veteran was at the Cayuga Correctional Facility, and his records had been moved there. There was no further attempt to obtain these records. Therefore, on remand, the RO/AMC should contact the Cayuga facility to obtain any records generated since September 2009. In addition, the Veteran was scheduled for a VA examination, but did not attend because he was incarcerated. Correspondence from the Veteran's representative dated September 2013 indicates that the Veteran has been released. Therefore, he should be afforded a VA examination to support his claim. Accordingly, the case is REMANDED for the following action: 1. Contact the Cuyaga Correctional Facility (2202 State Route 38A, P.O. Box 1150, Moravia, New York 13118-1150) and attempt to obtain the Veteran's treatment records generated there from September 2009 through the present. The Veteran can be identified to the facility by jail number 99B2410, NYC transfer number 04364905K, and statewide ID number 04364905K. All attempts to obtain these records should be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine whether the Veteran is currently diagnosed with ischemic heart disease. The claims file should be reviewed by the examiner. All indicated tests and studies should be conducted. Following the examination, the examiner should specifically state whether the Veteran is diagnosed with ischemic heart disease, including any of the following: 1) acute, subacute, and old myocardial infarction; 2) atherosclerotic cardiovascular disease including coronary artery disease and coronary bypass surgery; or 3) stable, unstable, and Prinzmetal's angina. 3. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2013). 4. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response 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 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). _________________________________________________ KELLI A. KORDICH Acting 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) (2013).