Citation Nr: 18142488 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-22 454 DATE: October 16, 2018 REMANDED The issue of entitlement to service connection for a heart disability, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to April 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This case was previously remanded by the Board in May 2018. The case has been returned to the Board for review. In May 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In addition to the matter noted above, the Veteran has appealed his claim for entitlement to service connection for metastatic melanoma. See January 2018 Notice of Disagreement. The electronic record indicates that the AOJ is taking action on this issue. The matter has not been certified for appellate review and the Board will not undertake review of the matter at this time. If the matter is not resolved in the Veteran’s favor, the RO will certify the matter to the Board, which will undertake appellate review of the RO’s action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board’s jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (2016) (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). 1. Entitlement to Service Connection for a Heart Disability The Veteran contends that he has a heart condition that is directly related to his active service. Specifically, the Veteran testified that he has a heart condition that is related to exposure to herbicide agents while serving in Vietnam. See May 2017 Board hearing transcript. The Veteran’s service personnel records reflect that he served in Vietnam during active service. He is therefore presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116 (f). The medical evidence of record shows that the Veteran has been diagnosed with aortic dissection. See August 2018 VA examination. Although the Veteran is presumed to have been exposed to herbicides during service, aortic dissection is not among those diseases presumptively linked to herbicide exposure under 38 C.F.R. § 3.309 (e). However, the Federal Circuit has determined that the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In its May 2018 remand, the Board directed the AOJ to provide the Veteran a VA examination to provide a diagnosis of each heart disability demonstrated since service and to opine as to whether it is at least as likely as not that any heart disability is related to active service. In its remand directives, the Board noted that applicable VA law establishes that the legal provision for presumptive service connection does not preclude a veteran from establishing service connection with proof of actual direct causation on a non-presumptive direct incurrence basis. The August 2018 VA examiner reviewed the record and stated that the Veteran has a current diagnosis of aortic dissection. The VA examiner stated that the Veteran’s aortic dissection is not a presumed medical condition related to Agent Orange exposure and therefore opined that the Veteran’s aortic dissection is not due to any military activity or exposure. However, the VA examiner did not provide an opinion as to whether the Veteran’s aortic dissection is related to herbicide exposure on a non-presumptive basis as directed by the May 2018 Board remand. Since the August 2018 VA examiner did not discuss service connection with proof of actual causation relating to the Veteran’s diagnosed aortic dissection, the August 2018 VA examination is not adequate for decision-making purposes and does not substantially comply with the Board’s May 2018 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). On remand the VA examiner must determine whether the Veteran’s aortic dissection is related to his active military service to include exposure to herbicide agents on a non-presumptive basis. See Combee, 34 F. 3d at 1039. The matter is REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who provided the August 2018 addendum opinion, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s aortic dissection is causally or etiologically related to the Veteran’s active service, to include his presumed exposure to herbicide agents? The examiner must note that, although aortic dissection is not among the conditions subject to presumptive service connection as a disease associated with exposure to herbicide agents under 38 C.F.R. § 3.309 (e), the Veteran is not precluded from establishing service connection for aortic dissection on a non-presumptive direct incurrence basis with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for a heart disability, to include due to Agent Orange exposure, and including on a non-presumptive direct incurrence basis, may be granted. If the benefit sought remains denied, furnish the Veteran   and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel