Citation Nr: 18148623 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 12-03 122 DATE: November 8, 2018 ORDER Entitlement to service connection for coronary artery disease (CAD) is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran has been diagnosed with CAD. 2. The Veteran served in the Republic of Vietnam during the Vietnam War. CONCLUSION OF LAW The criteria for service connection for CAD have been met. 38 U.S.C. §§ 1110, 1131, 1112, 1116 (2012); 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Introduction The Veteran served on active duty in the United States Army from July 1960 to July 1980, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of July 2009 and June 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2017, the Board remanded this case for additional development. The case has now been returned to the Board for further appellate consideration. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Where a veteran served in the Republic of Vietnam during the Vietnam War, the veteran shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3) (West 2014); 38 C.F.R. § 3.307(a)(6)(ii) (2017). For such veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of the disease during the period of service at issue. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Ischemic heart disease (IHD) (to include coronary artery disease (CAD)) is among the diseases for which presumptive service connection may be established on the basis of herbicide exposure. 38 C.F.R. § 3.309(e) (2017). Thus, if a veteran was exposed to a herbicide agent during active service and manifests CAD to a compensable degree at any time after such service, the condition will be service connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Board initially notes that the record shows the Veteran served in the Republic of Vietnam during the Vietnam War. By way of background, the Veteran has filed claims for service connection for congestive heart failure (CHF) and atrial fibrillation. In its May 2017 remand, however, the Board broadly interpreted the Veteran’s claims to include any and all diagnosed heart conditions. The Board noted the record was unclear as to whether the Veteran had been diagnosed with CAD. Specifically, whereas a May 2009 VA examination report did not include a CAD diagnosis, and a May 2010 VA examination report stated the Veteran had no history of CAD, a June 2011 primary care note indicated the Veteran was positive for CAD, and a December 2014 primary care physician note gave an assessment of “CAD-stable.” In pertinent part, the Board remanded the Veteran’s claim for a VA examination. The examiner was instructed to identify all heart conditions present during the period of the claim, and to specifically confirm or rule out IHD, CAD, and CHF. The Veteran was afforded a VA examination by a VA nurse practitioner in September 2017. The examiner diagnosed CHF and atrial fibrillation, and opined the conditions were causally related to the Veteran’s type II diabetes mellitus. The examiner stated, however, that there was “not enough evidence and medical history to diagnose CAD,” and that there was “not enough information to make a clinical judgment of IHD.” On the basis of the September 2017 VA examination report, service connection for atrial fibrillation with a history of CHF was granted in a June 2018 rating decision. The decision did not discuss CAD or IHD. In an October 2018 correspondence, the Veteran’s representative continued to assert the Veteran was entitled to service connection for CAD. After a careful review of the foregoing and of the entire record, the Board has determined the evidence is in equipoise as to whether the Veteran has had CAD during the period of the claim. In this regard, the Board notes that the June 2011 and December 2014 indications of a positive history of CAD in the Veteran’s VA treatment records were made by VA physicians. On the other hand, the September 2017 VA examination report was completed by a nurse practitioner. The Board further observes the VA examiner cited a lack of sufficient information and evidence to diagnosed IHD or CAD, but did not definitively conclude that such a diagnosis was not warranted. The examiner did not address the June 2011 and December 2014 diagnoses appearing in the Veteran’s outpatient records and did not otherwise provide any medical explanation for his determination that the condition could not be diagnosed. Again, after having resolved reasonable doubt in favor of the Veteran, the Board finds the evidence is in equipoise as to whether the Veteran has had CAD during the period of the claim. Because CAD is a form of IHD subject to presumptive service connection on the basis of the Veteran’s service in Vietnam, granting of service connection for CAD is in order. REMANDED ISSUE At the outset, the Board notes that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its May 2017 remand, the Board noted the Veteran had been diagnosed with a right shoulder disability, and that he contended the condition was related to two in-service falls. Specifically, the Veteran had contended he first injured his right shoulder in Fort Sill, Oklahoma, around 1963, and injured it again in Long Binh, Vietnam, in 1968 or 1969. In this regard, the Board noted the Veteran’s service treatment records (STRs) for the relevant period had not been located by VA. On remand, the Board instructed the RO to undertake efforts to obtain the relevant STRs, and to afford the Veteran a VA examination. In the event the RO was unable to locate the Veteran’s STRs, the VA examiner was instructed to assume the Veteran was a credible historian with regard to his accounts of the two in-service falls in question. On remand, the RO was unable to obtain the Veteran’s STRs. The Veteran was afforded a VA examination in September 2017. Although the examiner diagnosed a right shoulder disability, he opined the disability was less likely than not related to the Veteran’s service. In support of his opinion, the examiner cited the absence of any record documenting the Veteran’s in-service injury. Upon review, unfortunately, it does not appear the VA examiner complied with the Board’s remand instructions. Specifically, although the Board instructed the examiner, in the absence of the relevant STRs, to assume the Veteran was credible regarding the nature of his in-service right shoulder injuries, the examiner provided a negative nexus opinion solely on the basis that the claimed right shoulder injuries were not documented in the STRs. For this reason, the Board finds a remand is warranted for a supplemental VA medical opinion. If the examiner determines an additional examination is indicated, such an examination will be scheduled. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Forward the Veteran’s claims file to the September 2017 VA examiner, or, if he is unavailable, to another qualified examiner. If the examiner determines an additional VA examination is indicated, such an examination should be scheduled. After a review of the relevant records and lay statements, and an additional examination if indicated, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right shoulder disability originated during or is otherwise etiologically related to his military service. In providing his or her opinion, the examiner must presume the Veteran is a credible historian with regard to the occurrence and nature of his claimed in-service right shoulder injuries. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Undertake any other development determined to be warranted. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel