Citation Nr: 18143901 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 12-32 348 DATE: October 23, 2018 REMANDED The issue of entitlement to service connection for a for a heart disability, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran had active service from February 1966 to February 1968. This matter is before the Board on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran provided testimony before the undersigned Veterans Law Judge at a Board video conference hearing conducted in March 2014. A transcript of the hearing is of record. This matter was before the Board in January 2015 when it was remanded to the RO for additional development. Thereafter, the matter was returned to the Board, and in a decision dated in June 2017, the Board denied service connection for a heart disability, claimed as ischemic heart disease, to include as due to herbicide exposure. The Appellant appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In March 2018, VA's General Counsel and the Appellant filed a Joint Motion for Remand (JMR) with respect to the appealed claim. By an Order dated in that same month, the Court granted the JMR, and the issue of entitlement to service connection for heart disease was remanded to the Board for action consistent with the JMR. 1. Entitlement to service connection for a heart disability, to include as due to herbicide exposure, is remanded As noted above, the Board remanded the issue on appeal in January 2015 for additional development, to include a VA examination as to the nature and etiology of any heart disability identified. Pursuant to the January 2015 Board remand, a VA medical opinion was obtained in May 2015. Consistent with the findings outlined in the JMR, the Court held that the May 2015 VA medical opinion did not substantially comply with the directives of the January 2015 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (“A remand by…the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders.”); see also Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (finding that a VA examiner’s response to questions in a Board remand order “inadequately addresses the questions posed to her and that the Board should have ensured compliance with its previous remand order by obtaining a medical opinion that addressed the remand order.) Specifically, the Court found the May 2015 examiner’s opinion to be inadequate because the examiner did not address whether any diagnosed heart disability, (to include cardiac arrhythmias, atrial fibrillation, atrioventricular block, atypical chest pain, sick sinus syndrome, patent formen ovale, transient ischemic attack, occlusion stenosis of carotid artery with cerebral infarction and/or CVA) is related to active service. See R. at 187-89. In addition, it was noted that the examiner improperly found that the Veteran's condition was not related to service because he did not meet the requirements for presumptive service connection. See 38 C.F.R. § 3.309(e). However, notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994; see also Polovick v. Shinseki, 23 Vet. App. 48, 52-53, 55 (2009). Accordingly, the Board finds it appropriate to obtain a clarifying opinion as to whether any heart disability is related to his service. See Stegall, Donnellan, supra; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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. Schedule the Veteran for a VA examination to determine the nature and etiology of any heart disease. The examiner must review the claims file in conjunction with the examination. Any and all studies, tests and evaluation deemed necessary by the examiner should be performed. The examiner must address the following: Is it at least as likely as not (50 percent probability or more) that the Veteran has any heart disability, (to include cardiac arrhythmias, atrial fibrillation, atrioventricular block, atypical chest pain, sick sinus syndrome, patent formen ovale, transient ischemic attack, occlusion stenosis of carotid artery with cerebral infarction and/or CVA) that is related to active service, to include as due to herbicide exposure. In rendering the requested opinion, the examiner should specifically consider the Veteran's presumed exposure to herbicide agents such as Agent Orange and reconcile any findings with the December 2012 and March 2014 VA medical letters linking the Veteran's cardiac disabilities to Agent Orange exposure. Rationale must be provided for the opinion(s) proffered. In rendering the requested rationale, the examiner must note that notwithstanding the presumption for service connection due to exposure to an herbicide agent, a claimant can establish nonpresumptive direct-incurrence service connection for disability due to Agent Orange exposure with proof of direct causation. 2. After the above requested development, and any other development deemed necessary, has been completed, readjudicate   the issue on appeal. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case and an appropriate amount of time for response. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.E. Leary, Associate Counsel