Citation Nr: 1341590 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 08-00 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cardiovascular disability, to include hypertension, ventricular hypertrophy, and atrial fibrillation, including as due to Agent Orange exposure. 2. Entitlement to service connection for a pancreas disability, including as due to Agent Orange exposure. 3. Entitlement to service connection for a gall bladder disability, including as due to Agent Orange exposure or a pancreas disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from March 1971 to March 1977, including in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Having reviewed the record evidence, the Board finds that the issue on appeal are characterized more appropriately as stated on the title page of this decision. The Veteran testified before a Decision Review Officer (DRO) at the RO in June 2008. A transcript of that hearing has been associated with the claims file. At the time of the June 2008 hearing, the Veteran withdrew the issue of entitlement to service connection for lupus; therefore, that issue is not before the Board. See 38 C.F.R. § 20.204 (2013). This appeal previously was before the Board in May 2010, at which time it was remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. Unfortunately, and although the Board regrets any additional delay, the appeal is REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran essentially contends that his cardiovascular, gallbladder, and pancreas disabilities are related to his period of active service, including his presumed in-service herbicide exposure while in Vietnam. During his June 2008 hearing (and in other statements of record), the Veteran reiterated his belief that the claimed conditions were due in-service Agent Orange exposure. He also testified that at least one private treating physician as well as an "Army doctor" told him that his pancreas and cardiovascular problems possibly were related to such exposure. Alternatively, he also contends that his gallbladder disability is secondary to his pancreas disability. The Veteran's service personnel records confirm that he had active service in Vietnam during the Vietnam era. Therefore, he is presumed to have been exposed to herbicides in service. 38 U.S.C.A. § 1116(f). The Board remanded the cardiovascular, gallbladder, and pancreas claims in May 2010, in part, to obtain VA etiology examinations/opinions. The requested examinations were conducted in October 2010. Upon review of the October 2010 VA examination reports, the Board notes that while the examiners addressed the pertinent question of whether the Veteran's service-connected were directly incurred during service (or, whether they were related to in-service chest pain and gastrointestinal symptomatology), they did not address the other question at hand: namely, whether there was a relationship between the Veteran's in-service exposure to Agent Orange and his cardiovascular, gallbladder, and pancreas disabilities. Although the diagnosed ventricular hypertrophy, atrial fibrillation, pancreatitis, and cholesterolosis of the gallbladder, status post cholecystectomy (removal) are not among the disorders that are presumed to be associated with exposure to herbicides, the Board observes that the Agent Orange presumption is not the sole method for showing causation and that the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). The Board also notes that, while the October 2010 VA cardiovascular examiner diagnosed ventricular hypertrophy and atrial fibrillation, the etiology opinion/rationale only addressed the latter condition. Additionally, as noted by the Board in its previous remand, private and VA treatment records confirm a current (uncontrolled) hypertension diagnosis. This also should be addressed on remand. Given the foregoing, and in light of the length of time which has elapsed since the most recent VA examinations in May 2010, the Board finds that, on remand, the Veteran should be scheduled for appropriate VA examinations. The evidence reflects that the Veteran may have applied for Social Security Administration (SSA) disability benefits. The Board notes that VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the RO/AMC must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for a cardiovascular disability, a pancreas disability, or for a gall bladder disability since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Contact the Social Security Administration (SSA) and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. A copy of any letter(s) sent to SSA, and any response, to include any records provided by SSA, should be included in the claims file. 3. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his cardiovascular disability, to include hypertension, ventricular hypertrophy, and atrial fibrillation. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify any current cardiovascular disability currently experienced by the Veteran, to include hypertension, ventricular hypertrophy, and atrial fibrillation. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a cardiovascular disability, if diagnosed, is related to active service or any incident of service, to include the Veteran's presumed in-service herbicide exposure and/or his reported chest pain/pressure in February 1977. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. The examiner is advised that the Veteran contends that he incurred a cardiovascular disability during active service. The examiner also is advised that the Veteran contends alternatively that his in-service herbicide exposure while in Vietnam caused his current cardiovascular disability. The Veteran's service personnel records confirm that he served in Vietnam so his in-service herbicide exposure is presumed. The examiner finally is advised that the lack of in-service complaints of or treatment for a cardiovascular disability is not persuasive evidence that such did not occur during active service. 4. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his gallbladder disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify any current gallbladder disability currently experienced by the Veteran. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a gallbladder disability, if diagnosed, is related to active service or any incident of service, to include the Veteran's presumed in-service herbicide exposure. The examiner also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a pancreas disability caused or aggravated (permanently worsened) a gallbladder disability, if diagnosed. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. The examiner is advised that the Veteran contends that he incurred a gallbladder disability during active service. The examiner also is advised that the Veteran contends alternatively that his in-service herbicide exposure while in Vietnam caused his current gallbladder disability. The examiner is advised further that the Veteran also contends that a pancreas disability caused his current gallbladder disability. The Veteran's service personnel records confirm that he served in Vietnam so his in-service herbicide exposure is presumed. The examiner finally is advised that the lack of in-service complaints of or treatment for a gallbladder disability is not persuasive evidence that such did not occur during active service. 5. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his pancreas disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify any current pancreas disability currently experienced by the Veteran. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a pancreas disability, if diagnosed, is related to active service or any incident of service, to include the Veteran's presumed in-service herbicide exposure. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. The examiner is advised that the Veteran contends that he incurred a pancreas disability during active service. The examiner also is advised that the Veteran contends alternatively that his in-service herbicide exposure while in Vietnam caused his current pancreas disability. The Veteran's service personnel records confirm that he served in Vietnam so his in-service herbicide exposure is presumed. The examiner finally is advised that the lack of in-service complaints of or treatment for a pancreas disability is not persuasive evidence that such did not occur during active service. 6. The Veteran should be given adequate notice of the requested examinations which includes advising him of the consequences of his failure to report to the examinations. If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 7. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ MICHAEL T. OSBORNE 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).