Citation Nr: 1752593 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-28 492A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a heart disability, to include ischemic heart disease (IHD). 2. Entitlement to service connection for the residuals of a cerebrovascular accident (CVA), to include as secondary to a heart disability REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969, which included service in the Republic of Vietnam during the Vietnam Era. For his service, he received the Good Conduct Medal, Vietnam Service Medal with two Bronze Service Stars; Vietnam Campaign Medal with 60 Device, and National Defense Service medal with two Overseas Service Bars. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that a November 2011 rating decision denied service connection for CVA and a March 2012 rating decision denied service connection for CVA and heart disability. While the Veteran sought to reopen his claim in a March 2012 letter, he also submitted new lay statements and medical evidence from his private physician. Therefore, the Board finds that 38 C.F.R. § 3.156(b) applies. New and material evidence received prior to the expiration of an appeal period is considered to have been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b) (2017); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Accordingly the November 2011 and March 2012 rating decisions did not become final. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Board has therefore characterized the claims as reflected on the title page. . 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 Agency of Original Jurisdiction (AOJ). The VA will notify the Veteran if further action is required. REMAND The Veteran contends that his claimed heart disability and CVA stem from his exposure to herbicide agents during his service in the Republic of Vietnam. See January 2013 Statement in Support of Claim. As a preliminary matter, the Board observes the Veteran's service records establish that he served in the Republic of Vietnam during the Vietnam Era. See DD Form 214; Record of Assignments. As such, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii) (2017). With respect to the Veteran's claimed heart disability, he has been afforded one VA examination in August 2011. See August 2011 IHD VA Examination Report. At that time, the VA examiner indicated he carried diagnoses of essential hypertension and CVA since 2010. Notably, the VA examiner expressly ruled out a diagnosis of IHD. In doing so, the VA examiner did not acknowledge or reconcile Dr. G.E.'s findings in an April 2010 S.A. Medical Center Echocardiogram Note with the VA examination's findings. In the April 2010 S.A. Medical Center Echocardiogram Note Dr. G.E. relayed that while the Veteran's left ventricle was normal in size, there was moderate concentric hypertrophy. Further, there was left ventricular diastolic dysfunction, mild left atrial enlargement, and the suggestion of mild pulmonary hypertension. April 2010 S.A. Medical Center Echocardiogram Note. As a result, the August 2011 IHD VA Examination Report is inadequate for adjudication purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that an opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the disability is a fully informed one) citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994); see also September 2017 Appellate Brief Presentation. As another matter, since the August 2011 VA examination, additional private treatment records have been received by the RO. Among them, an August 2014 AMSG Treatment Note included an assessment of "other hypertrophic cardiomyopathy." However, there is no nexus opinion of record addressing this diagnosis. See September 2017 Appellate Brief Presentation. Aside from the Veteran's lay assertion that his claimed heart disability is the product of his exposure to herbicide agents in service, the Board notes there is no other nexus evidence of record. As he is not competent to diagnose a heart disability or opine on such a complex medical question as to the etiology thereof, the Board finds a remand is necessary to obtain another VA examination. See Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis); see also Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013), (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the Veteran's CVA and its residuals, the Board notes no separate VA examination has been conducted in this regard. Rather, as noted above, the August 2011 VA examiner simply acknowledged his diagnosis of CVA without providing a nexus opinion. See August 2011 IHD VA Examination Report. In denying service connection for the Veteran's CVA, the RO solely relied on the lack of medical evidence contemporaneous with his service demonstrating a complaint, treatment, or diagnosis of the same; and the fact that it is not included among the diseases eligible for presumptive service connection due to herbicide agent exposure. Notwithstanding the presumptive provisions, service connection for CVA based on exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to exposure to herbicides during service. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). Although a March 2012 Letter from Dr. F.L.D. confirmed the Veteran had a history of CVA, and Dr. F.L.D. went on to opine that it was as likely as not his CVA was caused or aggravated by his herbicide exposure in service; Dr. F.L.D. did not provide any supporting rationale or basis for this conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (holding that to have probative value, a medical report must contain not only a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two). For this reason, the Board cannot rest its decision on the March 2012 Letter from Dr. F.L.D. alone. However, as the evidence of record clearly establishes a current disability of residuals of CVA, and there is an indication the current disability is related to his herbicide agent exposure; the Board finds a remand is necessary to obtain a VA examination and opinion with rationale. See McLendon, 20 Vet. App. at 83 (holding that the threshold for determining whether the evidence indicates the current disability may be related to the in-service event is a low one); see also 38 U.S.C.A. § 5103(A)(d)(2)(B) (West 2014). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his claimed heart disability. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. After reviewing the complete record, the examiner should: a. Identify all current and prior diagnoses of a heart condition. b. Identify whether any of the current or prior diagnoses qualify as an IHD for VA compensation purposes, to include left ventricular diastolic dysfunction, left atrial enlargement, pulmonary hypertension, and hypertrophic cardiomyopathy. c. As to each diagnosis identified, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to his service, to include exposure to herbicide agents, and explain why. d. The examiner is reminded that by virtue of the Veteran's service in the Republic of Vietnam during the Vietnam Era, he is presumed to have been exposed to herbicide agents in service. e. In rendering an opinion, the examiner should discuss service connection on a direct basis due to herbicide agent exposure, which is distinct from presumptive service connection due to the same. f. If it is determined that there is another likely etiology for any heart disability found, that should be stated. * The examiner is reminded that notwithstanding the presumptive provisions, service connection based on exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to exposure to herbicides during service 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of his CVA and the residuals thereof. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. After reviewing the complete record, the examiner should: a. Opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to his service, to include exposure to herbicide agents, and explain why. b. The examiner is reminded that by virtue of the Veteran's service in the Republic of Vietnam during the Vietnam Era, he is presumed to have been exposed to herbicide agents in service. c. In rendering an opinion, the examiner should discuss service connection on a direct basis due to herbicide agent exposure, which is distinct from presumptive service connection due to the same. d. If a heart disability is found related to service, the examiner is requested to opine whether it is at least as likely as not (50 percent probability or greater) that a CVA is proximately due to or caused by a heart disability or is aggravated by a heart disability. Aggravation means a permanent worsening of the disorder beyond the natural progression of the disorder. e. If it is determined that there is another likely etiology for the CVA, that should be stated. * The examiner is reminded that notwithstanding the presumptive provisions, service connection based on exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to exposure to herbicides during service 3. Once each of the above requests has been completed, readjudicate the appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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). _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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 this appeal. 38 C.F.R. § 20.1100(b) (2017).