Citation Nr: 1338181 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-35 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R.N. Poulson, Counsel REMAND The Veteran served on active duty from December 9, 1963, to January 31, 1979; he had 8 years, 8 months, and 22 days of active service prior to December 9, 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2006 and October 2006 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Claims of service connection for sleep apnea and a heart disability were denied. In September 2013, the Board remanded the case for additional development, to include scheduling VA examinations. VA obtained sleep apnea and heart examinations in October 2013. Subsequently, in October 2013, the Appeals Management Center (AMC) granted service connection for sleep apnea. Consequently, his claim of entitlement to service connection for sleep apnea is no longer on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran contends that his heart condition is related to herbicide exposure. See October 2005 VA Form 21-4138. In the alternative, he asserts that heart problems are related to his service-connected sleep apnea and/or his service-connected asthma. See May 2007 VA Form 21-4148. In October 2013, the Veteran submitted to a VA heart examination. The examiner reviewed the claims file and diagnosed paroxysmal atrial tachycardia, aortic stenosis, and left ventricular hypertrophy. He noted that none of the Veteran's currently diagnosed heart conditions qualifies within the generally accepted medical definition of ischemic heart disease. He provided a negative nexus opinion with respect to both direct and secondary service connection. First, the examiner opined that the Veteran's heart conditions were at least as likely as not a life event because there is no known causative link between any of these conditions and herbicide exposure. Second, he opined that these conditions were less likely than not proximately due to or the result of the Veteran's "service-connected condition." He explained that there was no known causative link between the Veteran's "service-connected condition" and his diagnosed heart conditions. Finally, he concluded that there is no medical evidence that any of the Veteran's currently diagnosed heart disorders were aggravated by any of his service-connected disabilities. As noted above, subsequent to the October 2013 VA heart examination, the AMC granted service connection for the Veteran's sleep apnea. The aggravation opinion did not address the now service-connected sleep apnea. Thus, an addendum to the opinion must be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims folder should be returned to the same VA examiner who conducted the VA examination in October 2013, if available. (If the same examiner is not available, the Veteran's claims folder should be referred to another physician with the requisite experience to provide the requested opinion.) The examiner is requested to answer the following question based on review of the evidence of record: Is it at least as likely as not, i.e., a 50 percent probability or greater, that any currently diagnosed heart disorder has been caused or aggravated (permanently worsened beyond normal progression) by service-connected asthma or service-connected sleep apnea? A full and complete rationale for all opinions expressed must be provided. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Thereafter, readjudicate the claim on appeal. If a benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY 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).