Citation Nr: 1624442 Decision Date: 06/17/16 Archive Date: 06/29/16 DOCKET NO. 10-07 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a heart condition, claimed as cardiomyopathy, to include ischemic heart disease. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: S. F. Raymond Smith, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from June 1964 to July 1967 with subsequent service in the Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter was previously before the Board in March 2014. At that time, the Board denied the claims on appeal. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2015, the Court issued a memorandum decision that vacated the Board's decision and remanded the matter for readjudication. In the March 2014 decision, the Board considered entitlement to service connection for cardiomyopathy. This issue has been recharacterized as entitlement to service connection for a heart condition, to include cardiomyopathy and ischemic heart disease, as the Veteran's claim includes any current heart condition that is reasonably encompassed by his reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In September 2012, the Veteran appeared at a hearing before the undersigned. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran claims he may have been exposed to Agent Orange while serving aboard Navy vessels operating on the Subic Bay in the Philippines. According to the VA Benefits Adjudication Procedure Manual Rewrite (M21-1MR), if a claimant alleges that he was exposed to herbicides in locations other than Korea, Vietnam, or Thailand, then VA must attempt to ascertain "the approximate dates, location, and nature of the alleged exposure." M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.o. VA must then follow a formal fact-finding algorithm that ensures that the claimant's allegations are fully investigated. Id. In all cases, if VA is unable to verify the claimed exposure, the matter is referred to a Joint Services Records Research Center (JSRRC) coordinator or directly to the JSRRC. It does not appear the proper development steps have been taken with respect to the Veteran's claim of possible Agent Orange exposure in the Philippines. Further, VA is required to provide an examination or obtain a medical opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has a current disability as it relates to both claims on appeal. He has asserted these disabilities may be the result of various environmental hazards to which he was exposed in service. He has further asserted symptoms associated with the claimed disabilities onset shortly after his separation from service, possibly during his period of Navy Reserve service. Thus, a VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file. 2. Take development actions outline in M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.o with respect to the Veteran's claim of possible herbicide exposure while serving aboard Navy vessels operating on the Subic Bay in the Philippines. Even if VA is unable to to verify the claimed exposure, refer the matter to a Joint Services Records Research Center (JSRRC) coordinator or directly to the JSRRC. 3. Schedule the Veteran for a VA examination to determine whether he has hypertension and/or a heart condition, to include cardiomyopathy and ischemic heart disease, that is at least as likely as not the result of disease or injury in service, to include exposure to environmental hazards such as lead-based paint and asbestos. With respect to the Veteran's claims related to herbicide exposure, the examiner is asked to address only whether there is a nexus between herbicide exposure and hypertension, if the development action in Step 2 indicates it is at least as likely as not the Veteran was exposed to herbicides during service in the Philippines. If an opinion in this regard is necessary, a statement that simply indicates hypertension is not a presumptive disease related to herbicide exposure should be deemed inadequate, and the examination report must be returned to the examiner for an adequate rationale. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. In this regard, the examiner is asked to specifically address the Veteran's reports of the onset of generalized weakness in the 1970s. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. Any missing evidence that would enable the examiner to provide the opinion should also be identified. 3. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order. The Veteran 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 2014). _________________________________________________ Michael J. Skaltsounis Acting 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).