Citation Nr: 18153525 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-44 805 DATE: November 28, 2018 REMANDED Entitlement to service connection for heart disease (claimed as due to Agent Orange exposure) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 through March 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision. In December 2015 the Veteran filed a substantive appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge at a hearing in June 2018. A transcript of that hearing is of the record. The Board finds that additional development is necessary prior to adjudication of the claim on appeal. The Veteran claims that he has a current heart disability, including possible ischemic heart disease, that was incurred during or is otherwise related to his military service, to include his exposure to herbicide agents therein. The Veteran has verified service in Vietnam; thus, in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.307 (a)(6)(iii). Service connection for ischemic heart disease, including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina, may be presumed due to an association with exposure to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e), Note 3. In this case, it is ambiguous whether the Veteran has a current diagnosis of ischemic heart disease, or any other cardiac disability as contemplated by 38 C.F.R. § 3.309 (e). The treatment records contain indications of diagnoses of ischemic cardiomyopathy, severe congestive heart failure, atrial fibrillation, nonischemic cardiomyopathy, ventricular arrhythmias, as well as the placement of an automatic implantable cardiac defibrillator in 2009. A February 2011 private treatment record contains diagnoses of transient ischemic attack and ischemic cardiomyopathy. A November 2016 VA outpatient treatment record contains a notation of a history of myocardial infarction times two. The Veteran underwent a VA examination in December 2014 to determine the nature and etiology of his claimed heart disease. The examiner found that the Veteran had a current disability, but did not offer any opinion as to whether that current disability is related to the Veteran’s service, and explicitly stated that while the claims file was reviewed, that he did not review any private medical records or treatment records from the VA because the claims file did not contain any medical records. The record on appeal contains private medical records, as well as VA treatment records. As such, the Board finds the examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The language of 38 C.F.R. 3.309 (e) contemplates the diagnosis of ischemic heart disease “including but not limited to” a list of possible heart conditions. This indicates the list is non-exhaustive and the lack of the presence of the Veteran’s current diagnoses among those mentioned in 38 C.F.R. 3.309 (e) does not preclude the diagnosis of ischemic heart disease. Further, the record now includes the medical records the VA examiner mentioned were not available. Because of this new evidence and the conflicting medical evidence of the presence of ischemic heart disease, a new medical opinion is necessary. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to submit any additional evidence or argument that may further his claim, to include any private medical records. The Veteran testified at his hearing in June 2018 that he had possession of private medical records concerning his heart disease from the early 1970s. 2. After completion of the above development, schedule the Veteran for a VA cardiovascular examination, with an examiner who has the opportunity to review the claims file. (a.) Based upon the examination, to include any necessary diagnostic testing, the examiner should clarify whether the Veteran has a diagnosis of ischemic heart disease, which includes but is not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal’s angina, and which excludes hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other disability that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e). (b.) To the extent possible, the VA examiner should address medical records documenting Veteran’s history of ischemic cardiomyopathy in Veteran’s private medical records, including records from Good Samaritan Hospital dated Feb 5, 2011 and November 9, 2012, expressing agreement or disagreement with the diagnoses noted therein, and the reasons for such agreement or disagreement. The same is requested with regard to notations in the Veteran’s VA records of diagnoses of ischemic attack and myocardial infarction times two. (c.) As to any diagnosed heart disability that does not qualify within the generally accepted medical definition of ischemic heart disease, the examiner should opine whether each such disorder is at least as likely as not (50 percent or greater probability) directly related to any event, injury, or illness during the Veteran’s service, to include his presumed exposure to herbicide agents while stationed in Vietnam. (d.) The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 3. After the development has been completed, adjudicate the claim. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. St. Laurent