Citation Nr: 18144112 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-41 374 DATE: October 23, 2018 ORDER Entitlement to service connection for tinnitus is dismissed. REMANDED Entitlement to service connection for a heart condition is remanded. FINDING OF FACT The claim of entitlement to service connection for tinnitus was granted by the Veterans Affairs (VA) Regional Office (RO) in an August 2018 rating decision; therefore, there is no longer a case or issue in controversy. CONCLUSION OF LAW The Board lacks jurisdiction over the issue of entitlement to service connection for tinnitus because the issue has been rendered moot. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Louisiana National Guard from August 1955 until August 1965 and from November 1971 until February 1983. In July and August of 1974 during active duty for training (ACDUTRA), the Veteran had an allergic reaction to a typhoid shot, and was thereafter diagnosed with chronic glomerulitis with hematuria. In an April 1984 rating decision, the RO granted service connection for glomerulonephritis with hypertension, reactive anxiety and hypoglycemia. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board denied the Veteran’s claim for service connection for tinnitus and a heart condition. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) in July 2018. The JMR vacated the Board’s denial of service connection for tinnitus and a heart condition. The Court remanded the claims to the Board for action consistent with the terms of the JMR. Entitlement to service connection for tinnitus is dismissed. In an August 2018 rating decision, after the Court remanded the claim of service connection for tinnitus, the RO granted entitlement to service connection for tinnitus. Therefore, the rating decision favorably resolved the issue of service connection for tinnitus in full. Because the issue of entitlement to service connection for tinnitus has been granted, the issue is rendered moot and is no longer in appellate status. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. Accordingly, the claim is dismissed. REASONS FOR REMAND Entitlement to service connection for a heart condition is remanded. The JMR indicated that the Board erred in denying the Veteran’s claim for service connection for a heart condition because VA failed to assist in obtaining additional medical records from the Veteran’s private physicians, to assist in obtaining information from Joint Services Records Research Center (JSRRC) regarding herbicide exposure at Fort Chaffee and to discuss in the Board decision’s whether the Veteran’s heart condition is caused or is aggravated by his service-connected glomerular nephritis. See Robinson v. Peake, 21 Vet. App. 454, 552-56 (2008) (all theories of entitlement to service connection that was raised either by the appellant or by the evidence of record should be addressed). The record reflects that the RO attempted to obtain information and corroborate the Veteran’s claim that he was exposed to an herbicide agent during ACDUTRA. In an October 2014 memo, the JSRRC Coordinator indicated that there was no information regarding the Veteran’s claim that he was exposed to an herbicide agent during his service. It was noted in the memo that an attempt was made to retrieve additional information from the Veteran in September 2014. The Veteran did not provide additional information until October 2014, when in his Notice of Disagreement he stated that he was exposed to an herbicide agent in Fort Chaffee, Arkansas. No specific time period was provided. The parties to the JMR want the Board to order additional development. The July 2014 VA examination reflects that the Veteran was being treated by a cardiologist, Dr. Welch, and a nephrologist, Dr. From; in an October 2013 note, the private cardiologist stated that the Veteran was referred to him from another private physician, Dr. Freedman. Relevant records had already been associated with the file but the parties to the JMR want the Board to obtain current records. Lastly, in an August 1982 medical report, the Veteran’s private physician advanced a diagnosis of hypertensive cardiovascular disease secondary to his chronic glomerulonephritis. His private physician, however, did not provide a rationale for linking the Veteran’s hypertensive cardiovascular disease to his glomerulonephritis. Therefore, the Board finds a remand is necessary to determine whether the Veteran’s current heart condition is secondary to his service-connected glomerular nephritis. The matter 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. Request from the Veteran any additional information regarding his service at Fort Chaffee, Arkansas, including, to the extent possible, the exact location and time at Fort Chaffee he performed his duties. 2. Even if the Veteran fails to respond to Remand directive one, move forward with a request from JSRRC or any appropriate service entity, including the Fort Chaffee Army base, for information that they could provide to corroborate the Veteran's claimed exposure, to include where at Fort Chaffee the herbicide agent was sprayed, the length of time that the herbicide agent or its byproducts could be expected to remain in such area, and whether an individual such as the Veteran on ACDUTRA/INACDUTRA would have been in an area where the herbicide agent was sprayed and/or would have remained. Also, to the extent possible, request information about the use of the herbicide agent to “control weeds” during the time that the Veteran served at Fort Chaffee. If no documentation is located, a written statement to that effect should be incorporated into the record. 3. Obtain authorizations for the three private physicians (Dr. Welch, Dr. From and Dr. Freedman), where copies of some treatment records were provided by the Veteran and associated with the claims folder, and request all necessary treatment records from the listed physicians. The RO/AMC should secure any necessary authorizations. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's heart condition. The Veteran's claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. (a) The examiner should determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed heart condition is caused by his service-connected glomerulus nephritis. (b) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s heart condition was aggravated (worsened beyond its natural progression) by his service-connected glomerulus nephritis? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation of the Veteran’s heart condition and determine what degree of additional impairment is attributable to aggravation of the heart condition due to his service-connected disorder. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lee, Associate Counsel