Citation Nr: 18150817 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-02 040 DATE: November 15, 2018 REMANDED Entitlement to service connection for a claimed disability of the bilateral knees is remanded. Entitlement to service connection for a claimed disability of the bilateral shoulders is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for a claimed disability manifested by dizziness, also claimed as vertigo, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a claimed heart disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for hepatitis B is remanded. Entitlement to service connection for current residuals of an in-service shrapnel wound is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to February 1968. Concerns Applicable to the Veteran’s Claims Generally According to a VA examination report, dated August 2013, the Veteran received disability compensation from the Social Security Administration (SSA) for at least two of his claimed disabilities – the knees and shoulders. Pursuant to its duty to assist the Veteran, VA must attempt to obtain relevant records from other Federal departments or agencies, including the SSA. See 38 C.F.R. § 3.159(c)(2). It is not clear from the record whether the Agency of Original Jurisdiction (AOJ) ever made a request to the SSA for the medical and other evidence relied on by the agency to determine that the Veteran was eligible. It is also unclear to what extent SSA considered the disabling effects of the Veteran’s different claimed disabilities when awarding him benefits. Therefore, the medical and claims processing records maintained by the SSA could potentially be relevant to any of the issues in this appeal. On remand, the Agency of Original Jurisdiction (AOJ) should make an appropriate records request to the SSA. To help decide the Veteran’s claims, the AOJ requested copies of his complete service treatment records using the Personnel Information Exchange System (PIES) request code M01 (request to furnish medical/dental complete medical dental records). In response to this request, the AOJ obtained copies of several records, including a note indicating that the Veteran was hospitalized for hepatitis at the Army Hospital in Fort Polk, Louisiana from September 9, 1967 to October 27, 1967. The note indicates the dates of the Veteran’s hospital admission and explains that bed rest and a special diet were part of his treatment. But it is unclear whether additional inpatient records exist describing the details of the Veteran’s hospital treatment over the course of more than a month. On remand, the RO should take appropriate action to locate any additional clinical record during the Veteran’s inservice hospitalization. The Board will remand all of the service connection claims with instructions to make appropriate requests to the NPRC for clinical records and to the SSA for any records concerning the Veteran. Heart Disorder and Hypertension According to his service personnel records and credible statements, the Veteran was deployed to Vietnam during his active duty service. Because of his service in Vietnam at the relevant time, the law presumes that he was exposed to certain herbicide agents. See 38 C.FR. § 3.307(a)(6). The Veteran has suggested that he is eligible to receive compensation for heart disease because his heart disease is presumed to be related to herbicide exposure under 38 C.F.R. § 3.309(e). When a Veteran who was exposed to herbicide agents develops ischemic heart disease, 38 C.F.R. § 3.309(e) presumes that ischemic heart disease is related to service. When the AOJ denied the heart disease claim, it relied on the August 2013 opinion of a VA examiner indicating that the Veteran did not have ischemic heart disease. But 38 C.F.R. § 3.309(e) defines “ischemic heart disease” as “including coronary artery disease . . . .” Id. According to the August 2013 VA examination report, the Veteran had “hypertension, atrial fibrillation and noncritical coronary artery disease, none of which are presumptive for Agent Orange or are due to military service.” The Board will remand the Veteran’s heart claim with instructions to obtain a clarification from the August 2013 examiner about the meaning of the term “noncritical coronary artery disease” – if the Veteran does indeed have coronary artery disease, as described in the regulation, and the term “noncritical” merely describes the relative severity of the condition, then the diagnosis would indeed qualify for presumptive service connection under the regulations concerning herbicide exposure. On remand, the AOJ should also obtain a medical opinion on the probability of a relationship between the Veteran’s post-service hypertension and military service. Hypertension is not currently considered a presumptive disease. However, VA has acknowledged in the Federal Register that there is “limited or suggestive evidence” of an association between hypertension and herbicide exposure. See 79 Fed. Reg. 20308, 20310 (Apr. 11, 2014). This language is similar to the language of the standard for triggering the need to obtain a medical opinion before deciding a claim for service-connected compensation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. The AOJ should make appropriate efforts to obtain complete copies of clinical records concerning the Veteran’s in-service hospitalization for hepatitis in September and October 1967. These efforts should include new appropriate requests for clinical records from the Army Hospital at Fort Polk, Louisiana, electronic mail follow-up to the VA Liaison Office at the NPRC, follow-up by a military records specialist, contact with the Veteran's duty station at the time of his separation from service. 2. The AOJ should send a request to the Social Security Administration (SSA) for copies of all of the Veteran’s records – not only medical records, but also all other SSA records, including but not limited to copies of the Veteran’s application for benefits and the SSA decision. The text of the AOJ’s request to the SSA, and any necessary follow-up requests, should make clear that the records requested include copies of the Veteran’s application to the SSA and the SSA decision. If the requested records are found to be unavailable, this should be noted in the claims file and the Veteran should be notified that the AOJ could not obtain any records from SSA. 3. Obtain and associate with the claims file copies of all VA treatment records since June 2013. 4. Send the claims file, including any newly obtained records, to the VA examiner who completed a VA Ischemic Heart Disease Questionnaire in August 2013. If the August 2013 VA examiner is unavailable for any reason, the requested opinion should be obtained from another qualified person. If the requested opinion cannot be provided without a new examination, the necessary examination should be arranged. After reviewing the claims file, the examiner should clarify the statement in section seven (“Remarks, if any”) of the August 2013 report indicating that the Veteran has “hypertension, atrial fibrillation and noncritical coronary artery disease, none of which is presumptive for Agent Orange or are due to his military service.” The examiner should explain the diagnosis of “noncritical coronary artery disease” and is advised that, for the purpose of the VA regulations concerning presumptive service connection for diseases associated with herbicides, the term “ischemic heart disease” includes “acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease INCLUDING CORNARY ARTERY DISEASE (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina . . .” In his or her written report, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran has coronary artery disease. The examiner should provide a thorough rationale explaining the reasons for his or her opinion. If the examiner indicates that the Veteran does not have coronary artery disease, he or she should attempt to reconcile this opinion and the August 2013 report indicating the presence of “noncritical coronary artery disease . . .” 5. Send the claims file, including any new records obtained as a result of the development mentioned above, to an appropriately qualified person for the purpose of preparing an opinion on the nature and etiology of the Veteran’s hypertension. If the examiner decides that a new in-person examination is needed before he or she can provide the requested opinion, a new examination should be arranged. The claims file should be reviewed by the examiner. Any indicated testing should be performed. The examiner is asked to address the following question: Is it at least as likely as not (50 percent probability or more) that the Veteran’s hypertension had its onset in or is in any way related to a disease, injury event during the Veteran’s active duty service, including his presumed exposure to herbicides. In providing the opinion as to whether the Veteran's hypertension is due to or is related to exposure to herbicides, the examiner must note their review of the following: The National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange Update 2010 (2010 Update) concluded that there is limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. 6. The AOJ should thoroughly review the information obtained as a result of the development ordered by these instructions and consider whether any further development, including possible examinations or opinions on the probable etiology of the appellant's other claimed disabilities, is needed based on the full record. 7. The AOJ must ensure that the examination reports and opinions requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel