Citation Nr: 1802264 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-31 404A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for an eye disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1965, to include service in Korea. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, in which the RO denied service connection for a heart disability (claimed as ischemic heart disease), headaches, and an eye disability, and continued its previous denial of service connection for a psychiatric disability (claimed as specific phobia). Jurisdiction over this case was subsequently transferred to the RO in New Orleans, Louisiana. In September 2014, the RO granted service connection for a psychiatric disability (characterized as posttraumatic stress disorder (PTSD); major depressive disorder (MDD); and specific phobia) and assigned an initial 70 percent rating effective April 16, 2010 (the identified date of claim). As this was a complete grant of the benefit sought, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating that where a service connection claim is granted during the pendency of the appeal, a second notice of disagreement must thereafter be filed to initiate appellate review of downstream issues such as the compensation level assigned for the disability or the effective date of service connection). In February 2015, the RO granted service connection for headaches and assigned an initial noncompensable (zero percent) rating effective April 7, 1981 (the identified date of claim). Although the Veteran filed a notice of disagreement (NOD) in March 2015 as to the initial rating and effective date assigned and a statement of the case (SOC) was issued in October 2017, there is no document following the October 2017 SOC that can be construed as a substantive appeal in the evidence of record and the time period for which the Veteran had to file his substantive appeal has expired. Therefore, this issue is also no longer before the Board. See 38 C.F.R. § 20.200 (2017) (an appeal consists of a timely filed NOD and, after an SOC has been furnished, a timely filed substantive appeal). Per the Veteran's request, he was scheduled for a video-conference hearing before the Board in December 2017. However, in November 2017, he cancelled his hearing request. See November 2017 Report of General Information (VA Form 27-0820). Accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2017). 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) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND VA is obligated to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability, the record indicates that the disability or symptoms may be associated with active service or an already service-connected disability, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4) (2017). The evidentiary requirement that the record indicates that the claimed disability may be associated with active service or an already service-connected disability is a "low threshold." See McLendon, 20 Vet. App. at 83. As to the claim for a heart disability, the Veteran claims that he has a current heart disability that is related to exposure to Agent Orange, herbicides (from spraying weed killer), and/or diesel fuel during his service near the Korean Demilitarized Zone (DMZ). In the alternative, the Veteran claims that his current heart disability is related to his service-connected psychiatric disability. Here, post-service private treatment records from Dr. K. show diagnoses of coronary artery disease (CAD) and cardiomyopathy, and VA treatment notes show the Veteran's reports of having "heart problems." Although service connection for ischemic heart disease, to include CAD, is warranted on a presumptive basis for veterans who were exposed to Agent Orange in the manner indicated in VA statutes and regulations, 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii), (iv) (2017) (veterans who served in Vietnam and certain areas of Korea (in or near the DMZ) during certain time periods (between April 1, 1968 and August 31, 1971) are presumed to have been exposed to Agent Orange, and are presumed service connected if diagnosed with certain listed diseases), the Veteran did not serve in Korea between April 1, 1968 and August 31, 1971. In addition, the U.S. Army & Joint Services Records Research Center (JSRRC) concluded that there was no evidence that the Veteran was exposed to tactical herbicides in service. The Veteran is therefore not presumed to have been exposed to Agent Orange. This does not, however, prevent him from establishing service connection on a different basis. See 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2017) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). The Veteran is currently service connected for PTSD, MDD, and specific phobia, and VA's own statements in connection with its rulemaking authority support a relationship between PTSD and heart disability. In this regard, VA has found that a presumption of service connection is warranted for atherosclerotic heart disease or hypertensive vascular disease for prisoners of war (POWs). This presumption is based on several medical studies indicating that veterans who have a long-term history of PTSD have a high risk of developing cardiovascular disease and myocardial infarction (particularly, if such veterans suffer from other major psychiatric disorders or inflammatory diseases in addition to PTSD); thus, since POWs have a relatively high rate of PTSD incurrence, they would presumably be at greater risk of cardiovascular disease. See Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). As to the claim for an eye disability, the Veteran claims that he has a current eye disability that is related to exposure to Agent Orange and/or herbicides (from spraying weed killer) during his service near the Korean DMZ. Here, a December 2014 VA treatment note shows a diagnosis of cataract. In addition, although the JSRRC concluded that there was no evidence that the Veteran was exposed to tactical herbicides in service, the Veteran has indicated that he was exposed to commercial herbicides by asserting that he was required to spray weed killer along the fence-line and around the camp during his service near the Korean DMZ. In this regard, he indicated that the weed killer was drawn from drums that were kept in a confined area and had white and orange stripes on them. Moreover, the Veteran has indicated that his current eye disability began in service, since 1963. See April 1981 Veteran's Application for Compensation or Pension (VA Form 21-526). Consequently, the foregoing evidence indicates that the Veteran has eye and heart disabilities (or symptoms) that may be associated with service or his service-connected psychiatric disability. Accordingly, the Board has determined that the "low threshold" necessary to trigger VA's duty to obtain an examination has been satisfied. McLendon, 20 Vet. App. at 83. Therefore, the Board finds that the claims for service connection for a heart disability and for an eye disability must be remanded for the Veteran to be scheduled for a VA examination to determine the nature and etiology of his current heart and eye disabilities. As these matters are being remanded, any updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: (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. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination as to the nature and etiology of his current heart disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's current heart disability had its onset in or is otherwise related to service, to include his reports of exposure to commercial herbicides (i.e., weed killer) and/or diesel fumes. The examiner should also express an opinion as to whether the Veteran's current heart disability is either (a) caused or (b) aggravated by his service-connected psychiatric disorder. The examiner should comment on the association between PTSD and heart disease noted in Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated with Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinions. A complete rationale should accompany any opinion provided. 3. Schedule the Veteran for a VA examination as to the nature and etiology of his current eye disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's current eye disability had its onset in or is otherwise related to service, to include his reports of exposure to commercial herbicides (i.e., weed killer) and/or diesel fumes. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. A complete rationale should accompany any opinion provided. 4. After undertaking any other development deemed appropriate, readjudicate the claims remaining on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental SOC and afforded an 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 the 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 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). _________________________________________________ Jonathan Hager 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).