Citation Nr: 1600360 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 13-23 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for peripheral vascular disease (PVD), to include as secondary to service-connected coronary artery disease (CAD) status post coronary artery bypass graft (CABG). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Brandon T. Callahan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to June 1971, including service in the Republic of Vietnam. He is the recipient of numerous awards and decorations, including the Combat Infantryman Badge. This matter comes before the Board of Veteran's Appeals on appeal from a rating decision issued in July 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA claims processing systems. The Board observes that additional evidence consisting of VA treatment records dated from October 2011 to December 2014 is of record and has not been considered by the Agency of Original Jurisdiction (AOJ). Furthermore, the Veteran has not waived AOJ consideration of such evidence. 38 C.F.R. § 20.1304(c) (2015). However, as this matter is being remanded, the AOJ will have the opportunity to consider such records in the readjudication of the Veteran's claim. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). As an initial matter, the Board finds that a remand is necessary in order to obtain outstanding records from the Social Security Administration (SSA). Specifically, the record contains two separate indications from the Veteran that he has received both Social Security Disability Insurance Benefits and Supplemental Security Income from SSA based on his ischemic heart disease and PVD since approximately 1999. Accordingly, it appears very likely that the SSA holds records which, although not binding on the VA, are relevant to this claim, and so the VA is obligated to attempt to obtain those records. See 38 U.S.C.A. §5103A(c)(1)(C); 38 C.F.R. §3.159(c)(2); Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The Board further finds that a remand is necessary in order to obtain an addendum opinion so as to ascertain the etiology of the Veteran's PVD. In this regard, the Board is cognizant that the Veteran has expressly stated that he has only claimed such disorder as secondary to his service-connected CAD status post CABG; however, the evidence of record has raised the issue of whether his PVD is directly related to service by way of his acknowledged exposure to herbicides coincident with his service in the Republic of Vietnam. Furthermore, as will be discussed below, the December 2011 VA examiner did not provide a rationale for her determination that the Veteran's PVD was not aggravated by his CAD status post CABG. In this regard, in December 2011, a VA examiner opined that it was less likely as not that the Veteran's PVD was caused or aggravated by his service-connected CAD. In offering such opinion, she explained the process of arteriosclerosis, or hardening of the arteries, and indicated that atherosclerosis was a specific type of arteriosclerosis. The examiner further explained that atherosclerosis referred to the buildup of fats in and on artery walls (plaques), which can restrict blood flow. Such plaques can also burst, causing a blood clot. Although atherosclerosis is often considered a heart problem, it can affect arteries anywhere in the body. The examiner indicated that a review of the record revealed that the Veteran had many issues related to atherosclerosis, to include CAD, renal artery stenosis, carotid stenosis, iliac stenosis/occlusion, and popliteal artery thrombosis, and smoking. She ultimately concluded that the Veteran's nonservice-connected arterial and venous issues were related to atherosclerosis. Specifically, the examiner stated that atherosclerosis along with the Veteran's long smoking history were the causative agents of his circulatory problems, not his service-connected CAD status post CABG. Subsequently, in September 2014, the Veteran submitted a statement from his private physician, Dr. Prather, who indicated that the Veteran had been followed in the cardiology clinic for CAD and PVD. Dr. Prather further stated that atherosclerosis within the vascular system causes both CAD and PVD. He stated that such is definitely a link between the two diseases. He further indicated that any plaque that would be within the vascular system that could cause CAD could and would most likely cause PVD. The Board observes that the award of service connection for CAD status post CABG was based on the Veteran's acknowledged in-service exposure to herbicides. Specifically, VA regulations provide that, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including ischemic heart disease, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases presumptively associated with herbicide exposure include ischemic heart disease, including, but not limited to, acute, subacute, and old myocardial infarction; artherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. Id. However, the regulation further indicates that, for the purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as PVD or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease). Id. at Note 2. Therefore, while the Veteran's PVD may not be presumptively service-connected as ischemic heart disease, the December 2011 VA examiner's and Dr. Prather's September 2014 opinions both indicate that the Veteran's CAD and PVD share an etiology and the former has been determined to be related to the Veteran's in-service herbicide exposure. Consequently, the Board finds that a remand is necessary to obtain an addendum opinion addressing such theory of entitlement. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (a claimant is not precluded from establishing service connection with proof of direct causation). Furthermore, as the December 2011 VA examiner did not provide a rationale for her determination that the Veteran's PVD was not aggravated by his CAD, another opinion, complete with rationale, should be obtained regarding such matter. Additionally, while on remand, the Veteran should be given an opportunity to identify any VA or non-VA records relevant to the claim on appeal that have not been obtained, to include updated private treatment records from Dr. Prather. Thereafter, all identified records should be obtained, to include those from Dr. Prather and the VA facility in Memphis, Tennessee, dated from December 2014 to the present. Finally, the Veteran's claim should be readjudicated on the entirety of the evidence, to include the VA treatment records dated from October 2011 to December 2014. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding VA or non-VA treatment records relevant to the claim on appeal, to include updated private treatment records from Dr. Prather. After obtaining any necessary authorization from the Veteran, all outstanding records, to include those from Dr. Prather and from the Memphis VA facility dated from December 2014 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The AOJ should request that the Social Security Administration furnish a copy of its decision awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all outstanding records have been associated with the record, return the record to the VA examiner who rendered an etiological opinion in December 2011. The record and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the record and the Remand have been reviewed. If the December 2011 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner is requested to review the record, to include the December 2011 VA opinion and Dr. Prather's September 2014 opinion, and offer an opinion on the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's PVD is related to his acknowledged in-service herbicide exposure? In this regard, a discussion of the principles addressed in the December 2011 and September 2014 opinions regarding atherosclerosis would be helpful. (B) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's PVD is aggravated by his service-connected CAD status post CABG? The examiner is advised that the term "aggravation" means an increase in severity of the disorder beyond the natural progression. Further, for any aggravation found by the examiner, the examiner should state, to the best of their ability, the baseline symptomology and, if possible, the amount of aggravation beyond the baseline that the Veteran's CAD status post CABG caused. The examiner also must provide the rationale for any opinion offered. 4. After completing the above development, and any other development that may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include the VA treatment records dated from October 2011 to December 2014. If the Veteran's claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case and appropriate period of time should be allowed for response. Thereafter, the claim should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 claim 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 2014). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).