Citation Nr: 1630119 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 09-31 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a heart disorder, to include as due to in-service herbicide exposure. 2. Entitlement to service connection for hypertension, to include as due to in-service herbicide exposure. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1964 and July 1968 as well as service in the Air National Guard from 1969 to 2004. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland Oregon, which denied service connection for hypertension and a heart disorder. Claims for service connection for a heart disorder and hypertension were received in October 2007 and January 2008, respectively. In March 2011, the Board denied service connection for a heart disorder and hypertension. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In October 2011, the parties filed a Joint Motion for Remand requesting that the March 2011 Board decision be vacated and the matter be remanded to the Board, which was granted by the Court in October 2011. In March 2012, the Board remanded the issues on appeal for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Service Connection for a Heart Disorder Pursuant to the March 2012 Board remand instructions, the Veteran was afforded a VA examination in May 2012 to assist in determining the nature and etiology of the claimed heart disorder, to include as due to in-service herbicide exposure, and whether any of the currently diagnosed heart disorders fell within the scope of ischemic heart disease. While providing opinions with supporting rationale that none of the Veteran's heart disorders qualified within the medical definition of ischemic heart disease and were not incurred in or caused by active service, the May 2012 VA examiner did not address, as directed by the March 2012 Board remand instructions, whether any current heart disorders onset in or were aggravated during the Veteran's National Guard service (July 1969 to August 2004) during a period of duty training. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (22) (West 2014), (24); 38 C.F.R. § 3.6(a), (c) (2015); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Further, the May 2012 VA examiner did not address, as directed by the March 2012 Board remand instructions, the finding of a grade 2 functional apical murmur as noted on the July 1969 Reserve enlistment physical examination report. Based on the above, the Board finds that an additional VA opinion is necessary as there remains some question as to the etiology of the heart disorder. 38 C.F.R. § 3.159(c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Service Connection for Hypertension Pursuant to the March 2012 Board remand instructions, the Veteran was afforded a VA examination in May 2012 to assist in determining the nature and etiology of the hypertension, to include as due to in-service herbicide exposure. The May 2012 VA examiner opined that the Veteran was diagnosed with hypertension in 2006 and was never told of this problem in the past or while on active duty. The VA examiner did not address, as directed by the March 2012 Board remand instructions, articles submitted by the Veteran entitled "Agent Orange and Hypertension" and "Agent Orange May Boost Vietnam Vets' Hypertension Risk" that discuss the U.S. Institute of Medicine (IOM) findings with regard to the connection, if any, between hypertension and exposure to herbicide agents. Most recently, in its 2012 report "Veterans and Agent Orange: Update 2012" the IOM Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides categorized hypertension as having limited or suggestive evidence of association with herbicide exposure. That is, the report found that epidemiologic evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion was limited because chance, bias, and confounding could not be ruled out with confidence. Because the Agent Orange Update allows that there is some, albeit limited, evidence of an associated between hypertension and herbicide exposure, and there continues to be no VA or private medical opinion of record with an etiology opinion addressing the question of whether the current hypertension was caused by in-service herbicide exposure, the Board finds that an additional VA opinion is necessary as there remains some question as to etiology of the hypertension. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. Accordingly, the case is REMANDED for the following action: 1. Arrange for the claims file to be reviewed by the VA examiner who prepared the May 2012 VA examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion to the examination report. If it is determined that another examination is needed to provide the required opinion, the Veteran should be afforded the appropriate VA examination to assist in determining the etiology of the current heart disorders and hypertension. The claims file should be provided to the examiner. The VA examiner should offer the following opinions with supporting rationale: Is it at least as likely as not (50 percent or greater probability) that the heart disorders were incurred in or aggravated during the National Guard service (July 1969 to August 2004) during a period of ACDUTRA? In rendering this opinion, the VA examiner should note and discuss (1) the finding of a grade 2 functional apical murmur at the time of Reserve enlistment in July 1969, (2) the finding of a first degree atrioventricular block in March 1981, and (3) the December 1999 medical board report. Is it at least as likely as not (50 percent or greater probability) that hypertension was caused by exposure to herbicide agents during active service? The Veteran is presumed to have been exposed to herbicides during service in the Republic of Vietnam. In rendering this opinion, the VA examiner should discuss the relevance, if any, of the findings by the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides report "Veterans and Agent Orange: Update 2012" that categorized hypertension as having limited or suggestive evidence of association with herbicide exposure as well as the articles submitted by the Veteran regarding the same. 2. Then, readjudicate the issues on appeal. If any part of the appeal remains denied, provide the Veteran and representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). _________________________________________________ J. Parker 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).