Citation Nr: 1751328 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-32 081 ) 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 as secondary to herbicide exposure and as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran and his spouse testified at a July 2017 Board hearing before the undersigned Veterans Law Judge (VLJ). The Veteran's claim for service-connection for cardiomyopathy was originally denied in an unappealed August 2007 rating decision. New and material evidence would ordinarily be required to reopen this claim; however, based on liberalizing regulation that created a new presumptive basis for granting service connection for ischemic heart disease as secondary to herbicide exposure, the Veteran's claim was recharacterized and reconsidered in a January 2011 rating decision. Therefore new and material evidence is not required and the claim must be reviewed on a de novo basis. See 75 Fed. Reg. 53, 202 (Aug. 31, 2010). Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999). Further, during the July 2017 hearing the issue was expanded to include service-connection for a heart condition, to include as secondary to herbicide exposure and as secondary to PTSD. However, the expanded claim does not include hypertension as it is a separately rated diagnosis. Accordingly, the Board has recharacterized the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's treatment records show a number of cardiac diagnoses including congestive heart failure, coronary artery disease, arterial fibrillation, and cardiomyopathy. Additionally, a March 2017 private treatment record shows that the Veteran had advanced heart failure and had a left-ventricular assist device (LVAD) implanted. The Veteran has asserted that these conditions are related to his active duty service, specifically herbicide exposure while serving in the Republic of Vietnam as well as to his already service connected PTSD. The Board notes that the Veteran has verified service in Vietnam; thus, in-service exposure to herbicides is presumed. 38 C.F.R. § 3.307(a)(6)(iii) (2017). In a November 2010 Disability Benefits Questionnaire (DBQ), a VA physician reported a diagnosis of cardiomyopathy, but indicated it was unknown if the Veteran had ischemic heart disease. However, the completing physician provided no opinion as to the etiology of the Veteran's diagnosed condition. In November 2016 the Veteran provide a letter from a private physician, Dr. J.B., which reported the Veteran had a past medical history significant for severe nonischemic cardiomyopathy and opined that the Veteran's PTSD has likely contributed to his overall cardiac condition. However, the physician did not specify whether PTSD was a cause of the Veteran's heart conditions or whether it aggravated his heart conditions beyond the ordinary progression. Both opinions are inadequate for the purposes of adjudication and the Board finds that it is necessary to afford the Veteran a VA examination to determine the nature and etiology of his current heart conditions. Additionally, during the July 2017 hearing the Veteran's representative indicated an intention to submit medical articles regarding the association of heart disease with PTSD. No such evidence was submitted. Upon remand, the Veteran is encouraged submit any medical evidence that supports his claim. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers. 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA cardiovascular examination to determine the nature and etiology of his claimed heart condition. All necessary tests and studies should be accomplished and all complaints and clinical manifestations should be reported in detail. The entire claims file, including a copy of this remand, should be reviewed in conjunction with the above evaluation. After reviewing the claims file and examining the Veteran, the examiner should address the following inquiries: a) Clarify whether the Veteran has a diagnosis of ischemic heart disease, which includes but is not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery, and which excludes hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e). b) As to any diagnosed heart condition that does not qualify within the generally accepted medical definition of ischemic heart disease, the examiner should opine whether each such condition is at least as likely as not (50 percent or greater probability) directly related to any event, injury, or illness during the Veteran's service, to include his presumed exposure to herbicides while stationed in Vietnam. c) As to any diagnosed heart condition that does not qualify within the generally accepted medical definition of ischemic heart disease, the examiner should opine whether each such condition is at least as likely as not (50 percent or greater probability) caused by his service-connected PTSD. d) As to any diagnosed heart condition that does not qualify within the generally accepted medical definition of ischemic heart disease, the examiner should opine whether each such condition is at least as likely as not aggravated (i.e., permanently worsened) beyond the natural progress by his service-connected PTSD. A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2014). _________________________________________________ MICHAEL LANE 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).