Citation Nr: 1416563 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 06-36 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU) from March 3, 2007. 2. Entitlement to service connection for a heart disorder, to include as due to herbicide exposure or as secondary to service-connected diabetes mellitus. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2005 and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board notes that the Veteran's initial claim was for service connection for a heart disorder, secondary to service-connected diabetes mellitus. The medical evidence of record indicates that the Veteran has been diagnosed with coronary artery disease, possibly underwent coronary bypass surgery and may have a current diagnosis of ischemic heart disease. See 38 C.F.R. § 3.309 (ischemic heart disease, including coronary artery disease and coronary bypass surgery, is a disease presumptively associated with exposure to certain herbicide agents). The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Board has recharacterized the claim as entitlement to service connection for a heart disorder, to include as due to herbicide exposure or as secondary to service-connected diabetes mellitus, as styled on the title page. In the February 2005 rating decision, service connection for posttraumatic stress disorder (PTSD) was established with a 50 percent disability rating effective June 15, 2004. In a March 2009 rating decision, the rating was increased to 100 percent, effective October 16, 2008. In a September 2009 decision, the Board denied the claim for a rating in excess of 50 percent from June 15, 2004 to October 15, 2008. The Veteran appealed the Board's September 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (Joint Motion), the parties explicitly noted that the Veteran was not appealing that portion of the Board's decision that denied him entitlement to an initial disability rating in excess of 50 percent for PTSD from June 15, 2004 to October 2008, and was only seeking an order vacating and remanding the September 2009 Board decision to the extent that it implicitly denied the Veteran a TDIU from March 3, 2007. In May 2011, the Court granted the Joint Motion and remanded the matter to the Board. In November 2011, the Board remanded the claim of entitlement to TDIU subsequent to March 3, 2007. In the May 2008 rating decision, service connection was denied for heart disease, including as secondary to the Veteran's service-connected diabetes mellitus. The Veteran appealed the decision to the Board and in September 2009, the Board remanded this issue in order to obtain a VA examination. In a November 2010 decision, the Board denied service connection for a heart disorder. The Veteran appealed the Board's November 2010 decision to the Court. In May 2012, the Court granted a Joint Motion and remanded the matter to the Board, specifically to obtain the Veteran's Social Security Administration (SSA) records. In May 2013, the Board remanded the claims of entitlement to TDIU and service connection for a heart disorder in order to obtain the Veteran's SSA records and a new TDIU VA examination. The Veteran has submitted several requests for records from his claims folder pursuant to the Freedom of Information Act (FOIA). The issue of FOIA was previously referred in the May 2013 Board remand, but has not been addressed by the Agency of Original Jurisdiction (AOJ). As the Veteran's claim is being remanded for additional development, there is no prejudice to the Veteran in REFERRING his FOIA requests to the AOJ for appropriate 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 The Veteran is seeking service connection for a heart disorder and entitlement to TDIU benefits from March 3, 2007. A remand is necessary for further evidentiary development of the Veteran's heart disorder claim. VA regulations provide that if a veteran was exposed to an herbicide agent during active military service, presumptive service connection is warranted for several disorders, including ischemic heart disease (including, but not limited to, acute, 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 Veteran's service personnel records showed that he served in the Republic of Vietnam; exposure to herbicides is conceded. At issue is whether the Veteran has any form of ischemic heart disease and whether or not any of his currently diagnosed heart conditions are related to his service-connected diabetes mellitus. Post-service treatment records reveal that in February 2007, the Veteran's private physician, Dr. V. K. G., tested the Veteran for evidence of ischemica. The findings from this tests were normal, with no ischemica noted. In April 2007, the Veteran underwent an aortic valve replacement after a finding of aortic stenosis following complaints of chest pain and angina. In June 2007, Dr. V. K. G., referred to the Veteran's history of coronary artery disease and coronary artery bypass surgery. In March 2009, Dr. J. F. D., opined that the Veteran had coronary artery disease secondary to his diabetes mellitus. During a January 2008 VA heart and diabetes mellitus examination, the examiner stated that the Veteran recently had open heart surgery for an aortic valve replacement but did not have coronary artery disease and did not require bypass grafting. An October 2009 VA heart examination report noted that the Veteran underwent aortic valve replacement surgery in April 2007, but was not known to have had coronary artery disease and did not require bypass grafting at the time of the surgery. Upon a January 2011 VA aid and attendance examination, the Veteran was found to have aortic valve replacement without any evidence of coronary artery disease. Dr. V. K. G., tested the Veteran again for evidence of ischemica in July 2012. The findings from this tests were normal, with no ischemica noted. In November 2013, the Veteran underwent a VA heart examination. The Veteran was diagnosed with congestive heart failure, valvular heart disease, heart valve replacement, and atrial fibrillation and atrial flutter. There was no diagnosis made of coronary artery disease. The VA examiner specifically found the Veteran's diagnosed heart conditions did not qualify within the generally accepted medical definition of ischemic heart disease. However, the VA examiner then opined that the Veteran's "[a]trial fibrillation may or may not be associated with ischemic heart disease or due to valvular heart condition." The Board finds the VA examiner's discussion of the Veteran's heart condition, as it related to ischemic heart disease, to be unclear. Regarding whether or not the Veteran's diagnosed heart conditions are related to or aggravated by military service, including the Veteran's service-connected diabetes, the rationale provided was that there are no medical records to support a finding that the heart conditions began during service and atrial fibrillation and aortic valve disease "are usually not directly caused by the diabetes." This VA opinion is insufficient as it does not address possible aggravation of the Veteran's heart conditions by his service-connected diabetes. Additionally, the rationale does not include a discussion of the Veteran's diagnosis of congestive heart failure. Finally, the opinion only addresses atrial fibrillation and aortic value disease as they generally relate to diabetes, not specifically as they relate to the Veteran's diabetes. An addendum opinion is required to address the issue of whether the Veteran is currently suffering from ischemic heart disease, to include coronary artery disease and coronary bypass surgery. See 38 C.F.R. § 3.309(e). Additionally, an addendum opinion must be secured as to whether the Veteran's currently diagnosed heart conditions were aggravated by his service-connected diabetes. These opinions must be supported by full and complete rationales. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The issue of entitlement to service connection for a heart disorder is intertwined with the issue of entitlement to TDIU benefits. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Remand is required for RO consideration of the service connection issue before the Board can make a final determination on the issue of entitlement to TDIU benefits. The duty to assist requires the RO to make reasonable efforts to obtain relevant VA and private medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Upon remand, recent VA treatment records and private medical records should also be obtained. 38 C.F.R. § 3.159(c). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Accordingly, the case is REMANDED for the following action: 1. After securing the necessary releases, obtain records of any updated treatment from Dr. Gupta and Dr. de la Cerna since May 2013, in addition to updated records from the VA Medical Center in Fresno, California since June 2013, along with records from any other medical treatment providers that the Veteran identifies as having evidence relevant to his claims. A response, negative or positive, should be associated with the claims file. 2. After completion of the foregoing, the RO should arrange for an addendum VA opinion from the same VA examiner who conducted the Veteran's November 2013 VA heart examination. If this VA examiner is not available, the RO should arrange for an addendum VA opinion from an examiner with appropriate expertise. The claims file and a copy of this remand should be made available to the examiner for their review. Based on the November 2013 heart examination and current review of the record, the VA examiner should answer the following questions: (a) Does the Veteran have a current diagnosis of coronary artery disease and/or coronary bypass surgery? (b) Are any of the Veteran's diagnosed heart conditions considered a form of ischemic heart disease? (c) Is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed heart condition(s) are related to the Veteran's active military service, including his presumed exposure to herbicides? (d) If the answer to (c) is "no," is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed heart condition(s) were caused by the Veteran's service-connected diabetes mellitus? (e) If the answer to (d) is "no," is it at least as likely as not (i.e. probability of 50 percent or greater) that any currently diagnosed heart condition(s) were aggravated by the Veteran's service-connected diabetes mellitus? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of severity of the heart condition (i.e., a baseline) before the onset of the aggravation. The VA examiner is requested to provide a thorough rationale for all opinions provided. In providing these opinions, the examiner should address the significance of Dr. V. K. G.'s June 2007 statement that the Veteran has a history of coronary artery disease and coronary bypass surgery; the March 2009 opinion from Dr. J. F. D. that the Veteran has coronary artery disease secondary to his diabetes mellitus; and, the November 2013 VA examiner's statement that the Veteran's "[a]trial fibrillation may or may not be associated with ischemic heart disease or due to valvular heart condition." Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 3. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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).