Citation Nr: 1334926 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-35 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a cardiovascular disorder, to include as due to in-service herbicide exposure. 2. Entitlement to service connection for skin cancer residuals, to include as due to in-service herbicide exposure. REPRESENTATION Veteran represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968, including service in the Republic of Vietnam (RVN) from December 1967 to September 1968. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska denied service connection for a heart condition, skin cancer, hypertension, and type II diabetes mellitus (DM). In June 2010, the Board recharacterized the heart condition issue as one of a cardiovascular disorder. It and the other issues comprising this matter were remanded for additional development. The RO denied service connection for ischemic heart disease in a May 2011 rating decision. A July 2011 letter informed the Veteran that the cardiovascular disorder issue subsequently would involve consideration of ischemic heart disease. Following completion of the aforementioned development, the RO granted service connection for type II DM in a June 2011 rating decision. The benefit sought was granted, in other words. This issue accordingly no longer is part of this matter. The Board denied service connection for a cardiovascular disorder, for skin cancer, and for hypertension in an October 2011 decision. The Veteran appealed only the determinations concerning a cardiovascular disorder and skin cancer to the United States Court of Appeals for Veterans Claims (Court). As such, the hypertension issue no longer is part of this matter. The Court issued a Memorandum Decision setting aside the pertinent portions of the Board's decision in March 2013. Service connection for a cardiovascular disorder and for skin cancer thus was remanded back to the Board for readjudication. Based on review of all of the evidence in the Veteran's paper claims file in addition to his Virtual VA electronic claims file, however, additional development is required prior to readjudication. This matter is REMANDED to the RO so that this development can be undertaken. Of note is that the Board has recharacterized the skin cancer issue as one of skin cancer residuals at this time because the cancer previously manifested by the Veteran resolved before he filed the instant claim, leaving only residuals during its pendency. REMAND In its Memorandum Decision, the Court referenced VA's duty to assist a claimant in substantiating the benefit(s) sought. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Court thereafter cited caselaw setting forth rules regarding VA medical examinations. It was noted that VA's duty to assist requires that any VA medical opinion rendered be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). It also was noted that such an opinion is adequate when it permits fully informed adjudication. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). Next, it was noted that service connection can be established on the basis of in-service herbicide exposure either presumptively or directly. Id.; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). It thus then was noted that a VA medical opinion finding that a condition is not related to service simply because it is not subject to presumptive service connection is insufficient for failing to consider direct service connection. Stefl, 21 Vet. App. at 120. Additionally was noted that a bald statement that a condition is not related to service directly is insufficient. Id. Finally, it was noted that a conclusion that an opinion is not possible without resort to speculation is insufficient unless the basis is explained or otherwise apparent. Jones v. Shinseki, 23 Vet. App. 382 (2010). The Court found that the Board relied on inadequate VA medical opinions in denying service connection for a cardiovascular disorder and for skin cancer. These opinions included a July 2011 VA medical opinion addressing the Veteran's cardiovascular disorder and a February 2011 VA medical opinion by the same examiner addressing the Veteran's skin cancer. The examiner was deemed to have discussed at length in both opinions the fact that presumptive service connection as due to in-service herbicide exposure could not be established. To the extent that the examiner's other discussion can be interpreted as addressing direct service connection as due to in-service herbicide exposure, it was deemed tantamount to a bald statement. The examiner's explanation for the conclusion that rendering an opinion regarding whether the Veteran's skin cancer was directly related to his sun exposure during service would require resort to speculation finally was deemed unclear. For these reasons, the Court directed that the Board conduct any additional development necessary and then undertake readjudication. Compliance with the Court is mandatory. Forcier v. Nicholson, 19 Vet. App. 414 (2006). However, readjudication cannot be undertaken by the Board at this time. The Board sincerely regrets the delay of a remand, but additional development is needed to ensure that the Veteran is afforded every possible consideration. Reliance cannot be placed on the July 2011 VA medical opinion addressing his cardiovascular disorder or the February 2011 VA medical opinion addressing his skin cancer. New VA medical opinions must be rendered. To ensure the new VA medical opinions are adequate as mandated by the duty to assist, they shall be free of the errors found by the Court in the previous opinions. The rationale for each opinion must include more than a bald statement about direct service connection as due to in-service herbicide exposure. The rationale must be clearly and fully articulated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120. It must be based on accurate facts. Reonal v. Brown, 5 Vet. App. 458 (1993). The Veteran's entire medical history thus must be considered. Stefl, 21 Vet. App. at 120; Ardison, 6 Vet. App. at 405. As such, he must be examined. Any outstanding pertinent records also must be obtained. VA's duty to assist indeed includes making reasonable efforts to procure relevant records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2013). Reasonable efforts with respect to records in government custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013). When the existence of records that are not in government custody is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2013). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2013). The claimant shall be notified if requested records cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). VA has obtained the Veteran's VA treatment records dated into August 2011. They reference his ongoing cardiovascular and skin care. Accordingly, it is inferred that there may be pertinent VA treatment records dated from August 2011 to present. These updated VA treatment records have not been requested by VA. A request or requests for them must be made, all the more so since VA has constructive notice of them. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative must be notified if the request or requests are unsuccessful. Treatment records dated into January 2010 from Dr. J.K. at the Nebraska Heart Institute are of record. A July 2011 VA treatment record contains the Veteran's report that a Dr. K. at NHI continues to provide cardiovascular care. Thus, VA must ask the Veteran either to submit updated treatment records from Dr. J.K. at the Nebraska Heart Institute or to provide enough information to identify and locate them along with an authorization for their release to VA. The Veteran should also be asked to do the same for any other treatment records from a private source regarding cardiovascular or skin care. If he provides the information and authorization, an initial request for the records must be made. Follow-up requests as well as notification to him and his representative if they are unsuccessful also must be made as necessary. Given the above, a REMAND is directed for the following: 1. Make as many requests as necessary to obtain updated VA treatment records regarding the Veteran dated from August 2011 to present. Associate all records received with the paper or electronic claims file. 2. Ask the Veteran either to submit any updated treatment records from Dr. J.K. at the Nebraska Heart Institute dated from January 2010 to present or to provide enough information to identify and locate them along with an authorization for their release to VA. Ask the Veteran the same regarding any other treatment records from a private source regarding cardiovascular or skin care. If the Veteran provides the information and authorization, make an initial request for the records with a follow-up request or requests as necessary. Associate all records received with the paper or electronic claims file. 3. If requested treatment records, whether VA or private, ultimately are not received or are received but are incomplete, next notify the Veteran and his representative pursuant to established procedure. Document the paper or electronic claims file claims as appropriate in this regard. 4. After completion of the above, arrange for the Veteran to undergo an appropriate VA examination(s) regarding a cardiovascular disorder and skin cancer. The examiner(s) shall review the paper and electronic claims files, documenting such in a report(s) to be placed in one of these files. The examiner(s) also shall document in the report an interview with the Veteran regarding the onset, frequency, duration, and severity of his relevant symptoms as well as their impact on his activities of daily living and employment. All tests and studies deemed necessary next shall be performed, the results of which shall be included in the report(s). Finally, the examiner shall render an opinion in the report as to the following: a) Has the Veteran manifested ischemic heart disease at any time since December 2007 when he filed the instant claim? Ischemic heart disease includes but is not limited to acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease which itself includes coronary artery disease (including coronary spasm) and coronary bypass surgery; as well as stable, unstable, and Prinzmetal's angina. b) If the Veteran does not have ischemic heart disease, is it at least as likely as not (a 50 percent or greater probability) that his other cardiovascular disorder was incurred during his service, is related to his conceded in-service herbicide exposure, or otherwise is related to his service? c) Is it at least as likely as not that the Veteran's skin cancer (and thus the residuals thereof) was incurred during his service, was related to his conceded in-service herbicide exposure, was related to his exposure to sun or sunlight during service to include in the RVN, or otherwise was related to his service? A clear and complete rationale (explanation) for each opinion shall be provided by the examiner(s) in the report(s). With respect to the Veteran's conceded in-service herbicide exposure, simply indicating that service connection cannot be presumed is not sufficient. Indeed, direct service connection may be warranted on this basis even where presumptive service connection cannot be established. A discussion of pertinent medical principles, with a citation for and copy if possible of any medical literature referenced, as they concern the pertinent medical and lay (non-medical) evidence therefore is required in this regard. The same is required with respect to incurrence during the Veteran's service, in-service exposure to sun or sunlight to include in the RVN, and a relation to service otherwise. The medical evidence includes service treatment records, VA and private treatment records, the February 2011 VA medical examination complete with opinions, an April 2011 VA medical opinion, and the July 2011 VA medical opinion. The lay evidence includes statements from the Veteran and, if submitted, statements from those acquainted with him. If an opinion cannot be provided without resort to speculation, a clear and complete rationale still is required. The examiner specifically shall discuss whether he/she cannot provide an affirmative or negative opinion due to a lack of the appropriate qualifications or the need for more information or whether nobody in the medical community at large could provide such an opinion due to the limits of current medical knowledge, the inability to select the cause among multiple potential causes, or the inability to obtain needed information. Researching medical literature may be necessary to do so. Once again, a citation for it is required with a copy to be provided if possible. 5. Finally, readjudicate the claims for service connection for a cardiovascular disorder, to include as due to in-service herbicide exposure, and for skin cancer residuals, to include as due to in-service herbicide exposure. If either determination is favorable to him, furnish him and his representative with a rating decision. If either determination is not favorable to him, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. Place a copy of the rating decision and/or SSOC in the paper or electronic claims file. Process any issues addressed in a SSOC for return to the Board. No action is required of the Veteran until he is notified by the RO. However, he is advised that his failure to report for a scheduled VA medical examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2013). He also is advised that he has the right to submit additional evidence and argument concerning this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. The law indeed requires that all matters remanded by the Board or by the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). A remand is in the nature of a preliminary order and does not constitute a decision. 38 C.F.R. § 20.1100(b) (2013).