Citation Nr: 1805056 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-26 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for Parkinson's disease, to include as due to herbicide or chemical exposure. 2. Entitlement to service connection for ischemic heart disease, to include as due to herbicide or chemical exposure. 3. Whether the severance of service connection for lung cancer was proper. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from August 1963 to September 1967 and from February 1979 to August 1984. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A January 2009 rating decision denied service connection for Parkinson's disease. A July 2010 rating decision granted service connection for lung cancer. A November 2011 rating decision proposed to sever service connection for lung cancer, and denied service connection for ischemic heart disease and entitlement to TDIU. A June 2012 rating decision severed service connection for lung cancer. In March 2015, the Veteran and spouse testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. REMAND The Veteran has submitted a letter showing that he had been awarded Social Security Disability benefits. While Social Security Administration (SSA) records are not controlling for VA determinations, they may be pertinent to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). When the VA is put on notice of the existence of SSA records, VA must seek to obtain the records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Lind v. Principi, 3 Vet. App. 493 (1992). The SSA records may be relevant to the current appeal. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board finds that the RO should obtain and associate with the claims file a copy of any SSA decision on the Veteran's claim, and copies of all medical records underlying that determination, following the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal agencies. In June 2015, the Board remanded the claims to schedule VA examinations for etiology opinions concerning claimed Parkinson's disease, lung cancer, and ischemic heart disease. The examiners were requested to opine whether it was at least as likely as not (50 percent probability or greater) that lung cancer, Parkinson's disease, and ischemic heart disease were related to active service, to include any verified chemical exposure. The examiners were specifically asked to comment on whether any diagnosed lung cancer, Parkinson's disease, and ischemic heart disease had their initial manifestation during active service, and they were requested to opine as to the most likely etiology. The requested examinations were performed in June 2017. Concerning Parkinson's disease, the examiner opined that Parkinson's disease was less likely as not incurred in or caused by alleged exposure to chemicals or herbicides during service. The examiner based the opinion on the examination of the Veteran and on reviewing medical records. The examiner commented on the records provided by the Veteran and the Department of Defense, and specifically noted VA's conclusion that exposure to herbicides could not be conceded. No opinion was provided regarding a possible direct connection to active service. Concerning lung cancer, the examiner opined that the Veteran's adenocarcinoma of the lung, status post-resections, was less likely as not incurred in or caused by chemical and herbicide exposure during active service. The examiner based the opinion on medical literature review, clinical experience, medical record review, and evaluation of the Veteran. The examiner specified that according to medical literature, there are many potential etiologic risk factors for lung cancer, to include cigarette smoke and other respiratory inhalants, and those risk factors were greater risk factors for lung cancer than the possible chemical exposures that the Veteran claimed having during active service. The examiner concluded that it was less likely as not that lung cancer was incurred in or was caused by chemical and herbicide exposure during service. No opinion was provided regarding a possible direct connection to active service. Concerning ischemic heart disease, the examiner opined that the Veteran did not have ischemic heart disease. The examiner commented that the Veteran likely had atherosclerosis. However, atherosclerosis in the absence of clinically significant ischemia did not meet the criteria for presence of ischemic heart disease. No etiology opinion was provided regarding atherosclerosis. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). The June 2017 VA examiners restricted their opinions to whether it was at least as likely as not that lung cancer and Parkinson's disease were related to chemical and herbicide exposure. Contrary to the June 2015 remand instructions, the examiners made no comment on whether the lung cancer and Parkinson's disease had their initial manifestation during active service or were related to any other aspect of active service. Therefore, remand is required to obtain additional etiology opinion concerning lung cancer and Parkinson's disease. The Board notes that the June 2017 VA examiner stated that the Veteran did not have ischemic heart disease. However, the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board notes that once VA provides an examination or obtains an opinion, even if not required to do so, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In October 2012, H.H., M.D., F.A.C.C. diagnosed coronary artery disease. That physician indicated that the Veteran had ischemic heart disease. A November 2012 VA progress note also contains a diagnosis of ischemic heart disease. As the Veteran received a medical diagnosis of ischemic heart disease during the claims process, remand is required to obtain an etiology opinion concerning the October 2012 and November 2012 diagnoses of ischemic heart disease. Further, the claim for TDIU is inextricably intertwined with the issue of entitlement to service connection for Parkinson's' disease and ischemic heart disease, and whether the severance of service connection for lung cancer was proper. Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Therefore, further consideration of the claim for TDIU must be deferred. Accordingly, the case is REMANDED for the following action: 1. With any necessary authorization from the Veteran, obtain any outstanding VA and private treatment records. All attempts to locate records must be documented in the claims file. 2. Request from the Social Security Administration complete copies of any disability decisions made concerning the Veteran and copies of the medical records that served as the basis for any decisions. Make reasonable efforts to obtain the records, including at least one follow-up request if no response is received. If the records are not available, a negative reply is required. 3. After all available records have been associated with the claims file, schedule the Veteran for a VA examination with a medical doctor examiner who has not previously examined him. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner should determine the nature and etiology of lung cancer, Parkinson's disease, and coronary artery disease, to include ischemic heart disease, if present. The examiner should opine for each disability whether it is at least as likely as not (50 percent or greater probability) that lung cancer, Parkinson's disease, and coronary artery disease, to include ischemic heart disease, had its onset during or is related to a disease or injury during active duty. If no ischemic heart disease is found, the examiner is asked to consider the October 2012 examination report from H.H., M.D., F.A.C.C., and the November 2012 VA treatment note, which both indicate that the Veteran had a diagnosis of ischemic heart disease. The examiner is specifically requested to provide the requested opinions regarding the diagnosis of ischemic heart disease in the October 2012 examination report from H.H., M.D., F.A.C.C., and the November 2012 VA treatment note. The examiner should also reconcile the opinion with previous opinions. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts 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).