Citation Nr: 1752099 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 04-43 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for left carpal tunnel syndrome, to include as secondary to a service-connected right wrist disability. 2. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. 3. Entitlement to a disability rating in excess of 20 percent for the residuals of a right ankle injury from May 2009. REPRESENTATION Veteran represented by: Robert Chisholm, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1971 and from December 2004 to January 2005. He had service in the Republic of Vietnam from November 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a, June 2009, August 2009, and August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. In February 2010, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing is of record. In regards to the left wrist carpal tunnel syndrome issue, a Joint Motion for Partial Remand was filed in December 2014 with the United States Court of Appeals for Veterans Claims (Court). Consequently, the Court granted that Motion vacating and remanding the May 2014 Board decision. The Board remanded the issue for additional development in October 2015. The Board notes that the May 2014 decision also remanded the issues of entitlement to service connection for ischemic heart disease and entitlement to a rating in excess of 20 percent for the residuals of a right ankle injury from May 2009, but that the Court did not disturb this part of the decision. The right ankle issue was also remanded by the Board in April 2010 and February 2011. The Board acknowledges that the Veteran's attorney has perfected his appeal other issues including service connection for sinusitis, hypertension, sleep apnea, and increased rating for right carpal tunnel syndrome, diabetes mellitus, and right wrist limitation of motion. However, the RO has not yet certified those issues to the Board, and further development remains outstanding. Under these circumstances, the Board currently declines jurisdiction over these matters; they will be addressed in a later decision. The issues relating to the left wrist carpal tunnel syndrome and right ankle condition are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran's ischemic heart disease is presumed to have been incurred in service as a result of herbicide exposure. CONCLUSION OF LAW The criteria to establish service connection on a presumptive basis for an ischemic heart condition have been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his attorney has raised any issue with the duty to notify or duty to assist as to the issue addressed in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). There was substantial compliance with the prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38. U.S.C. § 1110; 38 C.F.R. § 3.303(a) (2016). "To establish a right to compensation for a present disability, a Veteran must show," (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e. a nexus, between the present disability and the disease or injury incurred or aggravated during service." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain disabilities, including ischemic heart disease, may be presumed service connected if manifest to a degree of 10 percent or more for a herbicide exposed Veteran. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The term ischemic heart disease, for presumptive service connection purposes, does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309, Note 3. The Veteran asserts that his heart condition was caused by his exposure to Agent Orange during his deployment to the Republic of Vietnam. His Service Treatment Records (STRs) were negative of chest pains or other symptoms associated with a cardiovascular condition. The Veteran's September 2003 cardiovascular examination revealed normal first and second heart sound with no murmurs, no gallops, and no rubs. However, his electrocardiogram (EKG) indicated abnormal results, showing a sinus rhythm with T wave inversions in the lateral leads, suggestive of ischemia. The physician recommended a cardiolite GXT be performed and also recommended aspirin therapy. The Veteran was afforded a VA examination in July 2011. There, the examiner found that the Veteran did not have ischemic heart disease. There was no history of percutaneous coronary intervention, myocardial infarction, coronary bypass surgery, or heart transplant. The Veteran also did not have congestive heart failure. An echocardiogram revealed a left ventricular ejection fraction of 55 percent. In conclusion, the examiner found that the Veteran had no history or cardiovascular disease resulting in clinically significant ischemia. He also noted that an exercise stress EKG test done in August 2010 was negative for EKG changes consistent with ischemia. The examiner found the evidence demonstrated the Veteran's hypertension pre-dated his type II diabetes mellitus. An August 2013 VA treatment record showed that the Veteran's health risk associated with obesity included diabetes, hypertension, and heart disease. A May 2014 private treatment report noted a diagnosis of HCVD (hypertensive cardiovascular disease). No diagnostic test findings were reported. A November 2016 VA emergency services report noted the Veteran complained of chest and back pain. It was noted a computed tomography (CT) scan revealed aortic atherosclerosis. An EKG revealed sinus bradycardia with a pulse of 58 beats per minute. The physician noted findings of aortic atherosclerosis. The Board finds that service connection for an ischemic heart disease is warranted based on a presumptive basis, due to the Veteran's presumed herbicide exposure in service. 38 C.F.R. 3.307, 3.309. Although the May 2014 private treatment report noted a diagnosis of HCVD no information was provided as to the basis for the diagnosis and no diagnostic test findings were provided. The November 2016 VA treatment record, however, includes a diagnosis of aortic atherosclerosis based upon CT scan findings. The Board finds this report to be persuasive as to the appropriate diagnosis for the Veteran's cardiovascular disorder. Service reports show the Veteran was awarded both a Vietnam Campaign Medal and Vietnam Service Medal and confirm his service in the Republic of Vietnam. In light of his Vietnam service and the diagnosis of an ischemic heart disease, specifically aortic atherosclerosis, the Veteran's claim is granted. ORDER Entitlement to service connection for ischemic heart disease is granted. REMAND After a Joint Motion for Partial Remand was granted by the Court in December 2014, the matter of the left wrist carpal tunnel syndrome was remanded for a medical opinion addendum regarding the issue of aggravation. Consequently, an addendum examination report was provided in June 2016. The examiner opined that the left wrist carpal tunnel syndrome was at least as likely as not incurred in or caused in service and explained that a service treatment report dated in January without indication of the year documented complaints of 'left hand numbness' that was thought to be due to cervical radiculopathy. He went on to state that since no electromyelogram was conducted at the time, there was no definitive diagnosis. The examiner , in essence, found that due to this report and symptoms that were later diagnosed as left carpal tunnel, it was at least as likely as not that the Veteran's carpal tunnel was incurred in service. The Board note, however, that contrary to the examiner's report, the entry referenced indicates "left shoulder numbness" and not "left hand numbness." It is unclear based upon the examiner's report whether this error is significant. The Board also notes that the referenced service treatment record was on the same page as a 2003 treatment report and indicates it was provided in conjunction with treatment during military reserve service rather than during a period of active duty service. The examiner found that it was less likely than not that the left wrist carpal tunnel syndrome was secondary to the Veteran's service-connected right wrist injury, but did not provide an opinion as to aggravation, as previously instructed in the October 2015 Board remand. The Court has held that a remand by the Board confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, additional development as to this matter is required prior to appellate review. As to the Veteran's claim for an increased rating for his service connected right ankle, it is noted that the Veteran has been provided multiple VA examinations during the period on appeal. His last examination, however, was in August 2014. In light of the U.S. Court of Appeal for Veteran's Claims (Court) decision in Corriea v. McDonald, 28 Vet. App. 158 (2016), the Board finds that the previous examinations are inadequate. In Correia, the Court found that under 38 C.F.R. § 4.59, a VA examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing (as appropriate), and, if possible, with rating of motion measurements of the opposite undamaged joint. To date, the Veteran has not been afforded a VA examination that includes such testing. As such, the examinations are inadequate and a remand is necessary to afford the Veteran an adequate examination. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record. 2. Obtain a clarifying medical opinion addendum regarding the Veteran's left wrist carpal tunnel syndrome based upon an accurate report of service treatment findings during active service and/or during military reserve service. An opinion should also be provided as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left wrist carpal tunnel syndrome was aggravated by the Veteran's service connected right wrist carpal tunnel syndrome. Rationale for the opinions should be provided. 3. Schedule the Veteran for a new examination regarding his right ankle disability. The examiner is to report the range of motion measurements in degrees. In accordance with Correia, the range of motion for the right and left ankles should be tested actively and passively, in weight bearing, and after repetitive use. All necessary tests and studies should be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The extent of any weakened movement, excess fatigability and incoordination should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, the Veteran and his attorney should be furnished a Supplemental Statement of the Case 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 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). ______________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs