Citation Nr: 1801784 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-32 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to a heart disability. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1956 to July 1979. This matter is before the Board of Veterans' Appeal (Board) on appeal from a May 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is seeking service connection for a heart disability and erectile dysfunction. Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of these claims. The Veteran contends that his current heart disability is related to his military service, to include as due to exposure to herbicide agents. A veteran who served in Vietnam is presumed to have been exposed to herbicides during that service. 38 C.F.R. § 3.307 (a) (6) (iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including ischemic heart disease, are deemed service-connected The Board notes that the Veteran did serve in Vietnam during the presumptive period of January 9, 1962 to May 7, 1975, thus the Veteran is presumed to have been exposed to an herbicide agent during his service in Vietnam. 38 C.F.R. § 3.307. However, the Veteran's most recent VA examination in May 2015 provided the diagnoses of valvular heart disease, bradycardias status post pacemaker, aortic aneurysm, and aortic insufficiency. The examiner provided that none of the aforementioned diagnoses were related to ischemic heart disease, and noted that the Veteran had valvular and rhythm issues, but no ischemic or blockage complications. Additionally, the Board notes that the Veteran submitted an ischemic heart disease Disability Benefits Questionnaire (DBQ) in September 2015. The private physician provided that the Veteran did not have a diagnosis of ischemic heart disease, but did assign the diagnoses of valvular heart disease, bradycardias status post pacemaker, and aortic aneurysm. The Board notes that valvular heart disease, bradycardias status post pacemaker, and aortic aneurysm are not on the list of diseases enumerated in 38 C.F.R. § 3.309 (e) for which presumptive service connection is warranted based on herbicide exposure. This does not, however, preclude a claimant from establishing service connection for the claimed disorders on direct basis, to include as due to exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the Board finds that the May 2015 VA examination report and September 2015 DBQ are inadequate. 38 C.F.R. § 3.159 (c) (4) (2016); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). The May 2015 VA examination report and September 2015 DBQ found that the Veteran did not have ischemic heart disease, thus presumptive service connection was not warranted based on herbicide exposure. However, the examinations failed to address whether the Veteran's heart disability was incurred or cause by his military service. As noted above, regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee, 34 F.3d at 1039. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran's claimed disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board notes that the RO has determined that the Veteran' service treatment records (STRs) cannot be located, and therefore are unavailable for review. See April 2015 Correspondence. However, the Veteran submitted a December 2015 statement in which the Veteran asserted that he went to sick call for chest pains while stationed at Dover Air Force Base in 1969 or 1970, thus the examiner should address this new evidence as well. See December 2015 Correspondence. With regards to the Veteran's claim for service connection for erectile dysfunction, to include as secondary to a heart disability, the Veteran alleges that his erectile dysfunction was caused or aggravated by his current heart disability. Review of the record indicates that the Veteran has not been afforded a VA examination to determine the nature and etiology of his erectile dysfunction. Under the circumstances, the Board finds that the requirements for obtaining a VA examination and opinion have satisfied. McLendon, 20 Vet. App. at 79. Additionally, review of the record shows that the Veteran was not provided VCAA notice letters with regard to his claims for entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents and erectile dysfunction, to include as secondary to a heart disability, proper VCAA notice must be provided with respect to these claims. 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. Provide a VCAA notice letter to the Veteran and his representative as to the information and evidence necessary to substantiate his claims for entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, and erectile dysfunction, to include as secondary to a heart disability. See 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b). 2. Forward the record and a copy of this remand to the VA clinician who performed the May 2015 VA heart disability examination or, if that clinician is not available, to another similarly qualified VA clinician for preparation of an addendum opinion. Further in-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination necessary to provide the information requested below, then such an examination should be scheduled. Following a review of the record, the examiner must address the following: (a) Provide diagnoses for all current heart disabilities, to include those noted during the appeal period. (b) Is it at least likely as not (a fifty percent probability or grater) that the Veteran's heart disability/disabilities is/are related to his active duty service, to specifically include exposure to herbicides, Agent Orange? (c) Is it at least likely as not (a fifty percent probability or grater) that the Veteran's heart disability/disabilities is/are related to his active duty service, to specifically include the Veteran's report of in-service chest pains? The examiner should consider the lay testimony of record. A detailed rationale supporting the examiner's opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his current erectile dysfunction. The evidence of record, to include a copy of this Remand, must be made available to the examiner and the examiner must indicate that the pertinent medical records and lay statements have been reviewed. Following a review of the record, the examiner must address the following: (a) Is it at least as likely as not (a 50 percent probability or greater), that the Veteran's erectile dysfunction began in service, was caused by service, or is otherwise related to the Veteran's military service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was caused by the Veteran's current heart disability? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was chronically worsened (aggravated) by the Veteran's current heart disability? Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. The examiner should consider the lay testimony of record. A detailed rationale supporting the examiner's opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (CONTINUED ON NEXT PAGE) The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (West 2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).