Citation Nr: 1605269 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 12-30 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a heart disability, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from September 1963 to March 1967. He served in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In September 2013, the Board remanded the case. In August 2014, the Board denied the benefits sought on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (Joint Motion), the Court, in an April 2015 Order, vacated the Board's August 2014 decision and remanded the matter to the Board. In August 2015, the Board remanded the case for further development consistent with the instructions in the Joint Motion to include a VA examination and opinion. As will be discussed further, the Board finds that the RO did not fully comply with the remand instructions and that another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal includes documents contained in the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of all of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With regard to the claim for service connection for a heart disability, to include as due to herbicide exposure, the Board notes that according to an April 2015, Joint Motion for Partial Remand, the July 2012 VA examination was found to be inadequate. More specifically, the Joint Motion for Partial Remand asserts that the examiner's opinion incorrectly stated that a September 2010 echocardiogram was the most recent. Additionally, while the examiner noted that she reviewed the Veteran's record in both the July 2012 examination report and the September 2013 addendum, she did not mention the April 2011 echocardiogram. The JMR stated that given that the April 2011 echocardiogram was medical evidence that may have supported a finding of ischemic heart disease, the examiner should have discussed it and explained why it did not indicate that the Veteran had ischemic heart disease. As such, the examiner's opinion did not rest upon the correct facts. The JMR requested that the claim be remanded for an adequate VA examination or for an addendum addressing the April 2011 echocardiogram. The Board remanded the issue so that the Veteran could be afforded a VA examination including echocardiogram testing. At the September 2015 VA examination, the examiner indicated that the Veteran's records were reviewed, however, the examiner listed a December 2010 echocardiogram as the most recent and did not mention the April 2011 echocardiogram contained in the Veteran's claims file. The examiner also did not conduct a new echocardiogram on the Veteran. As the examiner did not review and specifically comment on the April 2011 echocardiogram, or conduct an echocardiogram as instructed by the JMR and the Board remand, the Board finds that remand is again necessary to afford the Veteran a new examination in order to be in compliance with the JMR and prior remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA heart examination with a different examiner that the examiner who conducted the September 2015 VA examination, to determine the nature and etiology of any current heart disability. Any indicated tests, including an echocardiogram, should be accomplished. The examiner should review the record prior to examination and that review should be noted in the examination report. The examiner should be requested to provide the following: (a) Conduct an echocardiogram on the Veteran. (b) Identify all current heart disabilities, to include whether the Veteran has ischemic heart disease. (c) Provide an opinion as to whether it is at least as likely as not, (probability 50 percent or more) that any of the identified heart disability(ies) had its clinical onset during service, during the one year period after service, or is related to any in-service disease, event, or injury, including presumed exposure to herbicides. The examiner should specifically review the April 2011 echocardiogram as well as the new echocardiogram being obtained and opine if the Veteran has ischemic heart disease. In providing the opinion, the examiner must specifically address whether or not the April 2011 echocardiogram indicates that the Veteran has ischemic heart disease. The examiner should also provide a complete rationale for all opinions expressed and conclusions reached. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 2. The RO should Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 3. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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 2014). _________________________________________________ GAYLE E. STROMMEN 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).