Citation Nr: 1338968 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 13-27 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for atrial fibrillation, claimed as ischemic heart disease, to include as due to inservice herbicide exposure. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from September 1964 to July 1967. He served in Vietnam from August 1966 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran initiated an appeal by filing a notice of disagreement (NOD) in March 2012 and after an August 2013 statement of the case (SOC) he perfected the appeal by filing VA Form 9, Appeal to the Board of Veterans' Appeals, in September 2013. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal a review of which does not reveal any additional documents pertinent to the present appeal other than electronic treatment (CAPRI) records through February 2012 and VA Form 21-0960A-1, Ischemic Heart Disease (IHD) Disability Benefits Questionnaire. In July 2009 the RO denied reopening of a claim for service connection for prostate cancer, finding no new and material evidence since a prior denial because while the Veteran had had surgery for benign prostatic hypertrophy but there was no evidence of prostate cancer. In a January 2012 VA Form 21-4138, Statement in Support of Claim, the Veteran again referenced having had prostate surgery. It is unclear whether the Veteran is seeking to reopen this claim. If so, it has not been not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate clarification and, if required, action. 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 Unfortunately, the Board's review of the claim files reveals that further RO action in this appeal is warranted, even though it will, regrettably, further delay an appellate decision on the matter on appeal. Because the Veteran served in Vietnam he is presumed to have been exposed to herbicides. Ischemic heart disease (IHD) is considered presumptively due to such inservice herbicide exposure. The central matter in this case is whether either the Veteran's documented atrial fibrillation is a manifestation of IDH, or he otherwise has IHD. As to this, in VA Form 21-0960A-1 (in Virtual VA) the Veteran reported that atrial fibrillation had been diagnosed in May 2009 and that in December 2009 premature ventricular contractions as well as arrhythmia were diagnosed. In the Veteran's September 2011 claim he reported that all records relative to his heart condition were at VA facilities. He has reported being treated at VA facilities in Minneapolis, Minnesota, and at Chippewa Valley. In VA Form 21-4138, Statement in Support of Claim, in January 2012 he reported that his service treatment records (SRTs) had been destroyed; however, this is incorrect. He also reported that his VA physicians felt that his cardiac condition could be due to herbicides. VA outpatient treatment (VAOPT) records show that in July 2010 it was reported that testing revealed aortic and mitral valve regurgitation. In June 2011 it was reported that he had a small inferior infarct. In August 2011 it was reported that he had an inferior wall scar, by coronary angiography. In August 2011 it was reported that he possibly had ischemia. A January 2012 VA CAPRI treatment record (in Virtual VA) shows that an August 2011 coronary angiography revealed nonobstructive coronary artery disease (CAD). Given these circumstance, the Veteran should be afforded a VA cardiology examination to determine whether he now has IHD. In this regard, 38 C.F.R. § 3.309(e) states that IHD includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease, including CAD (which includes coronary spasm) and coronary artery bypass surgery; and stable, unstable and Prinzmetal's angina. Further, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran and his representative should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). It should be specifically requested that the Veteran provide authorization to obtain any outstanding private medical records, if any, including those from any private physician(s) who had treated or evaluated him as to the disabilities addressed herein. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Explain the type of evidence that is the Veteran's ultimate responsibility to submit. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). All records and responses should be associated with the claim files. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe any further actions(s) to be taken. The records obtained should be associated with the claim files. If the Veteran responds by executing and returning any authorization or release forms for obtaining additional evidence, provide the required assistance in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. Also obtain all VA treatment records since February 2012 and associate them with the claim files. 2. After all records and/or responses from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo an appropriate examination by a cardiologist for the purpose of determining, whether the Veteran now has any form of IHD. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any cardiac disease which the Veteran now has is a form of IHD. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 3. If the Veteran fails to report to any scheduled examination, the RO\AMC must obtain and associate with the claim files a copy of any notice(s) of the date and time of the examination(s) sent to the Veteran by the pertinent VA medical facility. 4. To help avoid future remand, the RO\AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include obtaining any further opinion, if appropriate), the RO should adjudicate the claim on appeal in light of all pertinent evidence (particularly, that added to the claim files since the RO's last adjudication of the claim). 6. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case that includes clear reasons and bases for the determination, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ MARJORIE A. AUER 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).