Citation Nr: 1754528 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-16 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to September 1973. The Veteran died in November 1997, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the case was subsequently transferred to the jurisdiction of the Atlanta, Georgia RO. In March 2017, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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 death certificate lists the immediate cause of death as cardiac arrest. During his lifetime, he was service-connected for residuals of a fracture of the left medial malleolus with impaired tibia, a duodenal ulcer, and bronchitis. He was not service-connected for any cardiovascular disability, and his service treatment records are negative for any complaints treatment, or diagnosis of such a disorder. any record of or treatment for a cardiac disability in service. The appellant has contended that the Veteran's cardiac arrest occurred due to herbicide exposure in service. VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases. See VA Adjudication Procedure Manual, M21-1, Part IV.ii.1.H.5. As such, herbicide exposure should be conceded on a facts found or a direct basis if a veteran served in the Air Force in Thailand during the Vietnam era at one of the listed bases, including the Ubon Royal Thai Air Force Base, as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. M21-1, Part IV.ii.1.H.5.b. The Veteran's service personnel records show that he was stationed in Thailand at the Ubon RTAFB and served as both an air policeman and security policeman from February 10, 1967, to January 31, 1968. His form DD-214 also reflects that he served in the United States Air Force. As such, the evidence shows that he was exposed to herbicides during such service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases presumed to be associated with herbicide exposure include 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 stable, unstable and Prinzmetal's angina). 38 C.F.R. § 3.309(e). Although the Veteran died as a result of cardiac arrest, a review of the claims file does not show any diagnosis for ischemic heart disease during his lifetime. The appellant indicated during the Board hearing that she was unsure of whether the Veteran was ever diagnosed with ischemic heart disease, but indicated that he was treated by a Dr. G. (initials used to protect privacy) and a Dr. A. Records from these physicians have not been associated with the claims file. The appellant also indicated that the Veteran had been receiving treatment from VA since the 1980s. Although the claims file contains some records from the Atlanta VA Medical Center (VAMC), it does not appear that all of the Veteran's VA medical records have been associated with the file. Therefore, a remand is necessary to obtain any outstanding treatment records. A remand is also necessary to obtain a medical opinion which addresses whether the Veteran may have had a diagnosis of ischemic heart disease. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who have provided treatment for the Veteran, to include records from Dr. G. and Dr. A. (identified during the March 2017 Board hearing). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records which have not yet been associated with the claims file, to include any records from the Atlanta VAMC. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a VA medical opinion which addresses the nature and etiology of the Veteran's cardiac arrest prior to his death. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, prior statements, and the appellant's testimony at the March 2017 hearing. It should be noted that the Veteran and the appellant are considered competent to attest to factual matters of which they had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran or the appellant, the examiner should provide a fully reasoned explanation. The examiner should address whether the Veteran had ischemic heart disease during his lifetime. If not, he or she should state whether it is at least as likely as not that the Veteran's cardiac arrest was causally or etiologically related to his military service, to include herbicide exposure therein. (The term "at least as likely as not "does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]"38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the medical opinion to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the appellant and her representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).