Citation Nr: 1739980 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 16-31 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a heart disability, to include ischemic heart disease and atrial fibrillation, to include as secondary to service-connected disabilities or exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to September 1966. His service included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied service connection for ischemic heart disease. In his November 2010 claim, the Veteran stated he is seeking service connection for "an irregular heart beat" and "ischemic heart disease." His treatment records are replete with references to an atrial fibrillation disability. See, e.g., August 2011 VA examination. Accordingly, the Board has characterized the issue as stated on the title page to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009) (the Veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (regarding the scope of a claim). Review of the record shows that the Veteran submitted additional evidence consisting of a medical article. 38 U.S.C.A. § 7105(e) provides that waiver of initial Agency of Original Jurisdiction (AOJ) review of evidence submitted by the Veteran or his representative to the AOJ or the Board is presumed in cases where, as here, the substantive appeal was filed after February 2, 2013. See 38 U.S.C.A. § 7105(e) (West 2014); VA Fast Letter 14-02 (May 2, 2014). Accordingly, no waiver of review by the AOJ is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part on his part. REMAND The Board sincerely regrets the additional delay, but finds that further development is required prior to final adjudication of the Veteran's claim. The Veteran filed for entitlement to service connection for a heart disability in November 2010. In his claim, the Veteran posits he developed ischemic heart disease because of exposure to herbicide agents, including Agent Orange. He was afforded a VA examination in August 2011 to assess the etiology of his heart disability. However, the Board finds that the VA examiner's findings are inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Though she listed "atrial fibrillation" as a diagnosis, the examiner did not provide opinions as to whether the Veteran's diagnosed heart disabilities are related to service. Rather, she limited her review to whether the Veteran had an ischemic heart disease diagnosis. Since the examination, the Veteran submitted treatise evidence showing that high blood pressure is a "classic risk factor" of atrial fibrillation. See June 2016 article entitled "Causes of Atrial Fibrillation." The Veteran is currently service-connected for both Type II diabetes mellitus and hypertension. On remand, an addendum opinion is required to address the Veteran's claims under both secondary and direct service connection theories. Importantly, the Veteran has received continuous VA treatment for these service-connected disabilities since 2003. However, the evidentiary record contains gaps in treatment that available records reference; specifically, the claims file does not have VA treatment records from December 2002 to November 2003, February 2004 to October 2009, July 2010 to February 2012, and December 2015 to present from the Washington, DC VA Medical Center (VAMC). As such, the Board notes that there are identified, outstanding treatment records that should be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (2016) (holding that 38 C.F.R. §3.159(c)(3) extends the VA's duty to assist in obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities by VA, regardless of their relevance). On remand, the AOJ should obtain said missing records and associate them with the claims file. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records, to include treatment records from the Washington, DC VAMC dated from December 2002 to November 2003, February 2004 to October 2009, July 2010 to February 2012, and December 2015 to present. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. Obtain an addendum opinion from an appropriately qualified VA examiner, to determine the nature and etiology of the Veteran's heart disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's heart disability, to include atrial fibrillation, was either incurred in, or is otherwise related to, the Veteran's active duty service, to include exposure to herbicide agents? The medical professional must address the Veteran's contentions; specifically, the Veteran believes his atrial fibrillation, chest pressure, shortness of breath, exhaustion, dizziness, and issues sleeping amount to ischemic heart disease. The examiner must also address whether exposure to herbicide agent caused the Veteran's heart disability. He or she is advised that VA conceded exposure to herbicide agent. The Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. B. Is it as least as likely as not that the Veteran's heart disability, to include atrial fibrillation, was caused or aggravated by his service-connected diabetes or hypertension? The medical professional must address the Veteran's article linking hypertension to atrial fibrillation and discuss whether his medication for those disabilities or the disabilities themselves caused or aggravated his atrial fibrillation. Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. As stated above, in rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner cannot improperly discount the Veteran's lay statements without a rationale for doing so or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ should conduct any other development deemed appropriate, and ensure that the VA examination report and opinion comply with the Board's remand instructions. 4. After the above development has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. The Veteran and his representative have 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). _________________________________________________ G. A. WASIK 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) (2017).