Citation Nr: 1750892	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  14-00 103	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a cardiac disability, to include as due to Agent Orange exposure.

2.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

L. McCabe, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1968 to June 1971.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In March 2017, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board (Travel Board hearing).  A transcript of that hearing is of record.

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). 


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam era.

2.  The evidence is at least in equipoise as to whether the Veteran's cardiac pathology includes ischemic heart disease and coronary artery disease.  


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a cardiac disorder are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154(a), 5103, 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303(a) (2017).  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see, too, Caluza v. Brown, 7 Vet. App. 498 (1995).

The Veteran's service personnel records show that he served on land in Vietnam during the Vietnam Era, and thus he is presumed to have been exposed to an herbicide agent, including Agent Orange.  See 38 U.S.C. § 1116(f) (2014); 38 C.F.R. § 3.307(a)(6) (2017). 

VA has determined that certain diseases, including ischemic heart disease and coronary artery disease, are deemed associated with herbicide exposure.  38 U.S.C. § 1116(a) (2014); 38 C.F.R. §§ 3.307, 3.309(e) (2017).  Such identified diseases shall be service connected if a Veteran was exposed to a herbicide agent during active military, naval, or air service, subject to the requirements of 38 C.F.R. § 3.307(a)(6), even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  See 38 C.F.R. § 3.309(e). 

Here, although the Veteran's primary cardiac diagnosis is non-ischemic cardiomyopathy, which is not among the diseases specified in 38 U.S.C. § 1116(a), the Veteran's private cardiology treatment records reflect that his heart pathology includes components of ischemia and coronary artery disease.  See, e.g., April 2010 Capital Regional Medical Center Discharge Summary (reflecting that a "Cardiac cath[eterization] showed . . . obstructive coronary artery disease with an ischemic dilated cardiomyopathy"); April 2013 Capital Regional Medical Center Cardiology Progress Note (reflecting diagnoses including coronary artery disease); May 2013 Capital Regional Medical Center Emergency Provider Report (reflecting a medical history that includes "coronary artery disease").

Consequently, resolving reasonable doubt in the Veteran's favor, the Board finds the evidence to be in relative equipoise as to whether the Veran has a current cardiac disability that includes elements of ischemic heart disease.  See 38 U.S.C. 5107(b) (2014); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  Accordingly, because the Veteran served in Vietnam during the Vietnam era, service connection for his cardiac disability is warranted on a presumptive basis.  38 C.F.R. §§ 3.307, 3.309(e).


ORDER

Service connection for cardiac disability is granted.


REMAND

The issue of entitlement to a TDIU is dependent on the assignment of ratings to the claim granted herein.  See 38 C.F.R. § 4.16(a) (2017); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  Therefore, after the RO has assigned ratings to the Veteran's now-service-connected cardiac disorder, and after it has completed any additional development deemed necessary, the issue of entitlement to a TDIU should be readjudicated in light of the additional evidence; and if the claim is not granted, the matter should be returned to the Board.

Accordingly, the case is REMANDED for the following action:

1.  Implement the Board's decision awarding service connection for the Veteran's cardiac disability.

2.  Send a letter to the Veteran requesting that he identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim of entitlement to a TDIU.  He should be invited to submit this evidence himself or to request VA to obtain it on his behalf.  Authorized release forms (VA Form 21-4142) should be provided for this purpose. 

If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the claims file.  At least two such efforts should be made unless it is clear that a second effort would be futile. 

If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file.

2.  Obtain and associate with the claims file any outstanding VA treatment records.

3.  Determine whether a VA examination is necessary concerning the claim for a TDIU, and, if so, schedule the Veteran for an appropriate VA examination.

4.  Next, review the claims file to ensure that the foregoing requested development has been completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  See Stegall v. West, 11 Vet. App. 268 (1998).

5.  After completing the requested development, and any additional notification and/or development that may be warranted, readjudicate the claim of entitlement to a TDIU based on the additional evidence of record.  If any of the benefits remain denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).




______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs