Citation Nr: 1802790 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-21 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a heart disorder, to include ischemic heart disease, to include as a result of herbicide exposure. REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran had active duty service from July 1969 to July 1971, with Vietnam service from December 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, PA. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2016. A transcript of that hearing has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system and the Legacy Content Manager (LCM). LCM contains documents that are duplicative of what is in VBMS or are irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Secondary service connection claims may be granted based on a service-connected disability causing or aggravating another disorder. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439, 449 (1995). Medical opinions should address all appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Regarding the Veteran's claim for service connection for a heart disorder, remand is required to determine the likely etiology of any current heart disorder on a presumptive basis or on a non presumptive direct basis, to include as due to the presumed herbicide exposure and on a secondary basis to diabetes. See McLendon, 20 Vet. App. at 81; see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Veteran specifically contends that he has ischemic heart disease as the result of his presumed herbicide exposure in Vietnam during service, or, in the alternative, that it is caused or aggravated by his service-connected diabetes. The Veteran has had service in Vietnam between 1969 and 1970 and therefore has presumed herbicide exposure. Furthermore, the Veteran has been diagnosed with congestive heart failure and non-ischemic heart disease. See May 2013 VA Examination Report. In this regard, certain enumerated disorders such as ischemic heart disease, may be presumptively service-connected if the Veteran service in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii) (2017). In addition, a veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). At present, the evidence of record is unclear as to whether the Veteran has a current diagnosis of ischemic heart disease. A May 2013 VA examiner opined that the Veteran did not have ischemic heart disease, but the record indicates that such examination was in 2013 and does not show any testing for ischemic heart disease since. Moreover, this examiner did not address the etiology of the Veteran's heart problems based on the causation aspect of secondary service connection as it relates to diabetes. See 38 C.F.R. § 3.310(a), (b); El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Therefore, a new VA heart examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any current heart disorder. Access to the claims file must be made available to the examiner for review. The examination should include any diagnostic testing or evaluation deemed necessary, including laboratory tests. The Veteran must be interviewed. The examiner must provide a clear explanation for the opinion. The Veteran is presumed to have been exposed to herbicide agents during his military service in Vietnam. The VA examiner must answer the following questions: (a) Upon clinical examination and testing, does the Veteran have a current heart disorder that is on the list of presumptive service-connected diseases for herbicide exposure, including, but not limited to ischemic heart disease, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease, coronary spasm, coronary bypass surgery, or stable, unstable and Prinzmetal's angina? In rendering this opinion, the VA examiner must conduct any necessary testing to conclusively determine if the Veteran has current ischemic heart disease. (b) If the Veteran does not have a presumptive heart disease, is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran has another heart/coronary disorder, to include congestive heart failure, that began during or is otherwise related to his military service, to include any symptoms therein and/or his presumed herbicide exposure in service (regardless if the Veteran's type of heart disorder is not the type presumed to be associated with herbicide exposure). (c) Is it at least as likely as not (i.e., 50 percent or more probable) that each current heart disorder was caused by the Veteran's service-connected diabetes. (d) Is it at least as likely as not (i.e., 50 percent or more probable) that each current heart disorder was aggravated by the Veteran's service-connected diabetes. (e) In rendering the above opinions, the examiner must address the following evidence: 1) the Veteran's STRs being negative for any complaint, symptom, or diagnosis of a heart disorder; 2) post-service, evidence of any diagnosed cardiac disease or treatment; 3) May 2013 diagnosis of non-ischemic congestive heart failure; 4) the May 2013 VA examination finding that the risk factors for his non-ischemic heart problems included IV drug use; and 5) the Veteran's August 2016 Board hearing testimony. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2017). In the event that the Veteran does not report for any scheduled VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. 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 claims must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).