Citation Nr: 1806510 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-20 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a heart disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. D'Allaird, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The record before the Board includes multiple diagnoses of heart conditions. Claims must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Consequently, the matter before the Board has been recharacterized. The Board also notes that on his January 2014 substantive appeal (VA Form 9), the Veteran requested a local formal hearing. In August 2014, he withdrew this request; the Board considers his request withdrawn and will proceed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Service records confirm the Veteran served in the Republic of Vietnam during the Vietnam era, and as such, his exposure to herbicide agents during service is presumed. See 38 C.F.R. § 3.307 (2017). Ischemic heart disease (including atherosclerotic cardiovascular disease) is associated with herbicide agent exposure for purposes of the presumption. 38 C.F.R. § 3.309(e). The Veteran was afforded a VA examination for his heart condition in April 2012. The examiner provided a diagnosis of non-ischemic heart disease (aortic valve stenosis post aortic valve replacement). The examiner opined that it is at least as likely as not that the Veteran's aortic valve replacement is not due to any condition from his time in service. The examiner also stated the Veteran did not have ischemic heart disease. An opinion was obtained in January 2014 to address treatment notes from January 2011 which noted "trivial CAD." The 2014 examiner found a negative nexus and stated that despite the January 2011 note, he had no symptoms of ischemic heart disease and a note dated in February 2011 stated "no significant CAD." The Veteran submitted a statement in support of his claim dated in January 2011. In it, he stated that his doctor had told him that his heart condition was caused by Agent Orange. The Board finds the previous 2012 VA examination and 2014 VA medical opinion to be inadequate because neither considered whether the Veteran's heart condition was related to his presumed herbicide agent exposure. Furthermore, the Veteran's last VA examination was in April 2012, almost six years ago. It is necessary to determine the current state of the Veteran's heart condition and whether it has become ischemic. Therefore, this claim must be remanded to obtain a new VA examination. Accordingly, the case is REMANDED for the following actions: 1. With any needed assistance from the Veteran, obtain any identified private treatment records. 2. Obtain and associate with the claims file updated VA treatment records from July 2012 to the present. 3. After completing steps 1 and 2, schedule the Veteran for an appropriate VA examination for his heart condition. The examiner is asked to respond to the following: A) The examiner should identify all heart conditions and whether any identified heart condition qualifies as ischemic heart disease within the generally accepted medical definition of ischemic heart disease. B) If it is determined that the Veteran does not have a heart disability that medically qualifies as ischemic heart disease, then is it at least as likely as not (a 50 percent probability or greater) that the Veteran's heart condition began in service or is related to an incident in service, to include exposure to herbicide agents? As noted above, the Veteran's exposure to herbicide agents is presumed since he served in Vietnam during the Vietnam era. The examiner must provide a detailed explanation of the medical opinion provided, but cannot base the opinion solely on the fact that VA does not recognize a presumptive relationship between the Veteran's specific condition and past exposure to herbicide agents. Thus, the opinion and associated rationale needs to address the likelihood that this Veteran's heart condition was related to herbicide agent exposure given his medical history, family history, risk factors, etc. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she must state this and specifically explain why an opinion cannot be provided without resorting to speculation. 4. After completing the above actions and any other development as may be indicated, the AOJ must readjudicate the Veteran's claim on appeal in light of all the evidence of record. If the benefits on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C. § 7252 (2012). This remand is a preliminary order and not an appealable decision on the merits of the claim(s). 38 C.F.R. § 20.1100(b) (2017).