Citation Nr: 1743294 Decision Date: 09/28/17 Archive Date: 10/10/17 DOCKET NO. 12-32 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a heart disability, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction is now with the RO in Houston, Texas. In May 2014, the Veteran testified before the Board during a video conference hearing. A transcript of that proceeding is of record. This hearing was before a now-retired judge. In August 2017 correspondence, the Veteran was given the opportunity to request another hearing and notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond to the letter, and the Board will therefore proceed. In August 2015, service connection was granted for posttraumatic stress disorder, tinnitus, and bilateral hearing loss. As this constitutes a complete grant of benefits on appeal with respect to those issues, they are no longer on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993). In February 2015, the Board remanded this matter for further development. Thereafter, in May 2016, the Board denied service connection for the claimed disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). On March 3, 2017, the Court granted a Joint Motion for Remand (JMR) on the basis that the Board erred in its May 2016 decision when it relied on an inadequate VA medical examination report to deny the Veteran's claim. The matter is now again before the Board for action consistent with the terms of the JMR. As a final matter, the Board notes that additional military personnel records were received after the August 2015 Supplemental Statement of the Case (SSOC). However, given the nature of today's decision, and the Veteran's waiver of initial AOJ consideration in August 2015, another remand would be unnecessarily duplicative and merely delay resolution of the claim. See 38 C.F.R. § 20.1304 (2016) (providing that in certain circumstances, the Board cannot consider evidence in the first instance unless the appellant waives initial consideration by the AOJ). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, the May 2016 Board decision denied the Veteran's claim on the basis that he had no current heart disability. The March 2017 JMR states that the May 2015 VA examiner initially noted that a May 28, 2015, echocardiogram showed mild left ventricular hypertrophy. The examiner also stated that the Veteran had normal left ventricular size and wall thickness. Additionally, the VA examiner later stated that there was no evidence of cardiac hypertrophy. Consequently, as these findings appear to be inconsistent regarding whether the Veteran has a current heart disability, remand is warranted for a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any heart disabilities. The examiner should review the entire claims file and note such review in the examination report. All necessary tests and studies should be conducted. A comprehensive rationale must be provided for the opinions rendered. The examiner should respond to the following: (a) Does the Veteran have any diagnosable heart disability, including ischemic heart disease? (c) If so, is it at least as likely as not (50% probability or greater) that any diagnosed heart disability is related to the Veteran's period of active service, to include his exposure to herbicides in Vietnam? The Veteran's exposure to herbicides in Vietnam has been established by the record. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should indicate such and provide a supporting rationale as to why the opinion cannot be made without resorting to speculation. 2. Thereafter, the AOJ should readjudicate the claim on appeal. If any determination remains unfavorable to the Veteran, he should be furnished with a Supplemental Statement of the Case and an opportunity to respond before the case is returned to the Board. The appellant 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). _________________________________________________ JENNIFER HWA 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) (2016).