Citation Nr: 1336733 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 08-16 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a heart disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a hearing before the Board in July 2012. In a January 2013 decision, the Board reopened a claim of entitlement to service connection for a heart disability and remanded the claim for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required on his part. REMAND A review of the claims file reveals that a remand is unfortunately once again necessary before a decision on the merits of the claim can be reached. The Veteran claims that he has a heart disability related to his active duty service. Specifically, the Veteran testified that he had difficulty breathing during service which he attributes to a heart disability. He denied seeking treatment for any heart disability during service but indicated that he has experienced the same types of symptoms since service. As an initial matter, the Board notes that 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 that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). The diseases for which service connection due to herbicide exposure is presumed include ischemic heart disease. 38 C.F.R. § 3.309(e) (2013). The term "ischemic heart disease" includes, but is not limited to, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 38 C.F.R. § 3.309(e). The term "ischemic heart disease" does not include hypertension or peripheral manifestations of arteriosclerosis or any other condition that does not qualify with the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309, Note (3) (2013). A review of the Veteran's service separation document reflects that the Veteran served in the Republic of Vietnam for a period of one year and one day during his active service from October 1965 to October 1967. He is therefore presumed to have been exposed to herbicides during his active duty service. Additionally, a veteran is presumed sound on entry into service except for conditions noted on examination at the time of entry into service, or shown by clear and unmistakable evidence to have pre-existed service and was not aggravated by service. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2013). Only those conditions recorded in examination reports can be considered as noted and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of a condition. 38 C.F.R. § 3.304(b) (2013). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion or a later medical opinion based upon statements made by the Veteran about the pre-service history of his condition. Miller v. West, 11 Vet. App. 345 (1998); Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (2003), 70 Fed. Reg. 23027 (2005). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). A review of the Veteran's service treatment reports (STRs) reveals that a mitral systolic murmur was noted at the Veteran's entrance to service. The records do not reveal any further reference to any disorders of the heart and the Veteran's August 1967 separation examination included a normal clinical evaluation of the heart. Post-service private treatment reports reflect that the Veteran was diagnosed with severe mitral regurgitation secondary to myxomatous degeneration of the mitral valve with moderate mitral annular calcification prior to a mitral valve replacement in December 2001. An August 2005 statement from T. Nascimento, M.D., F.A.C.C., reflects that the Veteran was noted to have significant left ventricular systolic dysfunction and significant valvular heart disease. The only VA examination of record, dated in January 2003, reflects that the Veteran was diagnosed with myxomatous mitral valve degeneration with right ventricular disease and pulmonary hypertension. No etiology for the disorder was noted. In this case, the etiology of the Veteran's claimed heart disorder is unclear. In order to properly adjudicate the Veteran's claim, a VA examination with etiology opinion is necessary. Additionally, VA outpatient treatment reports dated through February 2011 have been associated with the claims file. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain those records should be made. 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment reports dated since February 2011. Any other pertinent treatment records identified by the Veteran should also be obtained. Any negative responses should be associated with the claims file. 2. Then, schedule the Veteran for a VA cardiac examination with the appropriate specialist. The examiner must review the claims file and must note that review in the report. The report of examination should include a complete rationale for all opinions expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and then provide a rationale for why it was determined the requested opinion could not be provided without resort to speculation. Any necessary tests should be obtained. The examiner should provide the following information: a.) Provide a diagnosis of all current heart disabilities. Specifically state whether the Veteran has a current diagnosis of ischemic heart disease. b.) Are any diagnosed heart disabilities part of the same disease process as the mitral systolic heart murmur that was diagnosed at the time of the Veteran's entrance examination in July 1965? c.) If any diagnosed heart disability is part of the same disease process as the mitral systolic heart murmur that was diagnosed at the time of the Veteran's entrance examination in July 1965, is it more likely than not (a 50 percent or higher degree of probability) that any heart disability increased in severity during the Veteran's period of active service? d.) If any heart disability increased in severity during the Veteran's service, was any increase clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease? Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. e.) If any diagnosed heart disability is not part of the same disease process as the mitral systolic heart murmur that was diagnosed at the time of the Veteran's entrance examination in July 1965, is it at least as likely as not (a 50 percent or higher degree of probability) that any current heart disability is related to service? The examiner must consider any lay evidence of record regarding a continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 3. Then, readjudicate the issue on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. 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. 2013). _________________________________________________ D. C. Spickler 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).