Citation Nr: 1806897	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-14 477	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for skin cancer, claimed as secondary to exposure to herbicide agents.

4.  Entitlement to service connection for sebaceous cysts, to include as due to exposure to herbicide agents.

5.  Entitlement to service connection for heart disease, to include ischemic heart disease and/or congestive heart failure, claimed as secondary to exposure to herbicide agents.

6.  Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), claimed as secondary to exposure to herbicide agents.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

K. Neilson, Counsel


INTRODUCTION

The Veteran served on active duty from July 1967 to February 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Board notes that in his April 2014 VA Form 9 (Appeal to the Board of Veterans' Appeals), the Veteran had requested a Board hearing before a Veterans Law Judge, at a local RO.  In February 2015, the Veteran was notified that he had been placed on the list of persons wanting to appear for an in-person Board hearing (a "Travel Board" hearing).  In response, the Veteran informed the RO that he desired to withdraw his hearing request and asked that his case be forwarded to the Board for an appellate determination.

Regarding the Veteran's claim for service connection for heart disease, the claim was developed by the RO as one for service connection for ischemic heart disease.  In July 2017, the Veteran filed a claim for service connection for congestive heart failure.  In August 2017, the RO acknowledged the Veteran's filing, but found that the claim was intertwined with the Veteran's claim for service connection for heart disease, which was on appeal to the Board.  As such, the Board has expanded the claim on appeal, as indicated on the title page of this decision.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims must be considered a claim for any disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim").

The issues of entitlement to service connection for hearing loss and tinnitus are addressed below.  The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The preponderance of the evidence weighs against a finding that the Veteran has bilateral hearing loss for VA purposes at any time during the current appeal.

2.  Tinnitus did not have its onset in service, was not exhibited within the first post-service year, and is not otherwise related to active duty.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for service connection for tinnitus are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a) (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (2017).  In addition, certain chronic diseases, including organic disease of the nervous system, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding the 38 C.F.R. "§ 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'").  VA Adjudication Manual, M21-1, IV.ii.2.B.2.b (March 2, 2017) (noting that the Compensation Service has determined sensorineural hearing loss is an organic disease of the nervous system). 

In the instant case, the Veteran contends that he has bilateral hearing due to acoustic trauma in service.  The Veteran is competent to report in-service noise exposure. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Further, the Veteran's military occupational specialty (MOS) is listed on his DD Form 214 as a lineman and in requesting a VA audiological examination, the RO indicated that it was plausible that the Veteran had noise exposure in service.  Thus, in-service noise exposure is conceded in this case.  See 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence).  Regardless, however, of whether the Veteran was exposed to noise in service, an award of service connection may not be made unless the evidence also shows a current hearing loss disability that has been attributed to that in-service connection noise exposure.

For purposes of a hearing loss claim, impaired hearing will be considered a disability by VA when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2017).

The Veteran was afforded a VA audiological examination in February 2011, which report indicates that the Veteran was determined to have "[h]igh frequency sensorineural hearing loss, bilateral" and speech discrimination scores of 96 percent, bilaterally.  The accompanying audiogram showed the following left and right ear auditory thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
20
25
30
LEFT
25
20
20
25
35

Thus, despite the audiologist's indication of bilateral high frequency sensorineural hearing loss, the audiometric test results fail to reveal a left or right ear hearing impairment as defined by VA.  There has been no additional audiometric testing conducted during the claims period and the Veteran has not reported a decrease in hearing acuity since the February 2011 VA examination was conducted.  Moreover, VA treatment records dated as recently as June 2017 indicate no use of hearing aids, and thus do not potentially suggest a worsening of the Veteran's hearing loss since last examined.

Accordingly, the evidence of record reflects that the Veteran has not at any point since filing his claim had hearing loss as defined by 38 C.F.R. § 3.385.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  Although it was indicated on the 2011 examination report that the Veteran had a mild sensorineural hearing loss at 4000 hertz, bilaterally, a 30 or 35 decibel auditory threshold at 4000 hertz does not constitute a hearing disability for purposes of entitlement to VA disability compensation.  See Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007) (holding that "VA's interpretation of a hearing disability as expressed in the explanatory statement of § 3.385 is reasonable").  Furthermore, because there is no suggestion or indication that the Veteran's hearing acuity has decreased since his 2011 VA examination, the Board finds no reason to remand the matter for a new VA examination.  See Palczewski, 21 Vet. App. at 182 (explaining that whether there exists a current hearing loss disability depends on the level of hearing impairment, which makes the service connection determination akin to that of a disability rating); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (duty to provide a thorough and contemporaneous examination is triggered when the "evidence indicates there has been a material change in a disability or that the current rating may be incorrect").

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability.  See 38 U.S.C. § 1110 (2012).  The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores do not represent "impaired hearing" as defined by regulation.  Hensley v. Brown, 5 Vet. App. 155, 158 (1993) (citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992)); see Palczewski, supra.  Hence, in the absence of evidence that the Veteran currently has left or right ear hearing loss to an extent recognized as a disability under the governing regulation, there can be no award of service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Turning to the Veteran's claim for service connection for tinnitus, the VA audiologist who examined the Veteran in February 2011 indicated a diagnosis of tinnitus.  Further, as noted above, in service noise exposure has been conceded.  Thus, the question is one of nexus.

As to the question of nexus, the Board notes that in October 2010, when the Veteran claimed service connection for tinnitus, he did not indicate the date of onset of his tinnitus nor provide any information regarding his symptoms of tinnitus or frequency or duration thereof.  The Veteran's STRs are negative for complaints related to tinnitus.  His STRs do reveal that he reported having or having had ear, nose, or throat troubles on a January 1971 report of medical history, which problems were not reported in a May 1966 report of medical history.  However, treatment records dated around that time period show that the Veteran was seen for complaints of a sore throat.  During the February 2011 VA audiology examination, the Veteran reported the sudden onset of tinnitus roughly 15 years prior.  He could not recall any event or incident preceding the onset of tinnitus, but reported that the tinnitus is constant.  

Given the Veteran's report that his tinnitus did not begin until 15 years prior, which, as noted by the 2011 VA audiologist was more than 20 years after his separation from service, the VA audiologist opined that the Veteran's tinnitus was not likely due to military service.  In light of the February 2011 VA audiologist's negative nexus opinion, service connection for tinnitus is not warranted.  In concluding that the Veteran's tinnitus was not related to his period of active military service, the VA audiologist relied on the Veteran's own statements regarding the onset of tinnitus more than 20 years after service.  

The Board finds that, in light of the Veteran's STRs failing to disclose evidence of tinnitus or other ear problems in service, the Veteran's own report regarding the sudden onset of tinnitus in approximately 1996 and the February 2011 VA audiologist's opinion, there is no basis to establish service connection for tinnitus, as a crucial element of service connection has not been shown.  See Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability); see also Maxson, supra.

In finding that service connection for tinnitus is not warranted based on the lack of nexus evidence, the Board is cognizant of the fact that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection.'"  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)).  Here, the Veteran has not asserted that he first experienced ringing in his ears in service or that he has experienced such symptoms continuously since service.  Rather, in February 2011, the Veteran reported the onset of tinnitus to be 15 years prior.  Thus, a continuity of problems since service has not been shown.  Further, the absence of any clinical evidence of tinnitus for over two decades after the Veteran's separation from active service in February 1973 is one factor weighing against a finding that her current tinnitus was present in service or in the year or years immediately after service.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue).

As to the Veteran's belief that his current tinnitus is related to his exposure to loud noises in service, the Board acknowledges that lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau, 492 F.3d at 1377 n. 4. The general principle that exposure to loud noise may cause tinnitus is commonly known and, therefore, the Veteran's testimony that his tinnitus is related to his in-service noise exposure has some tendency to make a nexus more likely than it would be without such an assertion.  However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention.  Not all competent evidence is of equal value.

The question presented in this case (i.e., whether any relationship exists between the Veteran's current tinnitus and her military service) is a question as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses.  Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); and Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet) with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  To the extent that the Veteran is attempting to establish nexus through his own opinion, as a lay person he has not been shown to be capable of making such conclusions on such a complex medical matter.  An opinion as to the link between any current tinnitus and in-service noise exposure, where there is no evidence of tinnitus for over two decades after service, is one requiring specialized knowledge and testing to understand the complex nature of the auditory system.  The Veteran has not indicated that he has such experience.  Hence, his opinion on this question is not competent evidence.  To the extent that the Veteran's statements in this regard are competent, the Board finds the specific, reasoned opinion of the trained health care professional who provided the February 2011 opinion to be of greater probative weight than the Veteran's more general lay assertions.

There is no other evidence of a relationship between the Veteran's current tinnitus and service, and neither he nor his representative has alluded to the existence of any such evidence.  Thus, the preponderance of the evidence is against a finding that the Veteran's current tinnitus manifested in service, manifested within a year after his February 1973 separation from service, is the result of exposure to loud noise in service, or is otherwise related to service.  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application, and the claim of service connection for tinnitus must be denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.


REMAND

Turning first to the Veteran's claim for service connection for COPD, the Board notes that VA treatment records show that the Veteran has been diagnosed as having COPD.  The Veteran has contended that his COPD is due to his exposure to herbicides agents in service.  The Boards notes that veterans who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975, are presumed to have been exposed during such service to Agent Orange.  38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017).  Here, the Veteran's DD Form 214 and service personnel records confirm that the Veteran served in the Republic of Vietnam during the relevant time period.  Thus, in-service exposure to an herbicide agent is conceded.  Although such in-service exposure is conceded, COPD is not a disease that has been presumptively linked to such exposure.  See 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e).  Thus, nexus must be established.

Regarding the issue of nexus, the Board points out that the Veteran has not been afforded a VA examination in connection with his claim for service connection for COPD.  Significantly, while COPD is not a disease presumed service connected in veterans exposed to Agent Orange, in its 2010 update on possible relationships between Agent Orange exposure and diseases as determined by the National Academy of Sciences (NAS), VA wrote, "NAS noted that two new studies reported statistically significant evidence of association between herbicide exposure and chronic obstructive pulmonary disease (COPD)."  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47924, 47,927 (Aug. 10, 2012).  In the Veterans and Agent Orange: Update 2014, however, the NAS concluded that there is "inadequate or insufficient evidence of an association between exposure to the COIs and the prevalence of respiratory diseases, such as wheeze or asthma, COPD, and farmer's lung."  See Veterans and Agent Orange: Update 2014, (March 10, 2016), https://www.nap.edu/read/21845/chapter/15#873.  Notably, the NAS reports are "based on general statistics and used for purposes of determining whether there is sufficient nexus between a disease and Agent Orange to warrant placing the disease on the list of presumptive diseases."  Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009).  The Board notes further that VA has requested a research study concerning the relationship between exposure to Agent Orange and the development of COPD, the results of which have yet to be published.  See https://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp.  

The Board points out that the Court has held in multiple memorandum decisions that VA's acknowledgment in the Federal Register that there is "limited or suggestive evidence" of an association between herbicide agent exposure and hypertension was relevant to the question of whether a VA exam was warranted in connection with a claim for service connection for this disability and the failure to discuss the Federal Register NAS findings rendered the Board's reasons or bases inadequate, warranting vacatur and remand.  See, e.g., Clark v. Shinseki, No. 12-2667, 2013 WL 6729512 (Vet. App. Dec. 20, 2013); Rodela v. Shinseki, No. 12-2894, 2013 WL 6184952 (Vet. App. Nov. 27, 2013); King v. Shinseki, No. 12-2893, 2013 WL 5428781 (Vet. App. Sept. 30, 2013).  It would appear that the same reasoning would apply in this case, as clearly there is a question as to the relationship between Agent Orange exposure and the development of COPD, which question has not been definitively answered by the scientific and medical communities.  See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).  Accordingly, the Board finds that the "low threshold" to trigger VA's duty to obtain a medical opinion, and examination of the Veteran if deemed necessary, in this case has been met.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (duty to provide medical examination or obtain medical opinion is triggered by evidence a current disability; an event, injury, or disease that occurred in service; and an indication that the disability may be associated with the veteran's service).  

Turning to the Veteran's claim for service connection for ischemic heart disease, which is a disorder presumptively linked to herbicide exposure, the Board notes that that claim was denied by the RO upon concluding that the evidence failed to support a finding that the Veteran had been diagnosed as having ischemic heart disease.  VA treatment records associated with the Veteran's claims folder since the RO's denial of the claim, however, suggest that the Veteran may in fact have ischemic heart disease, which is defined by VA regulation to include atherosclerotic cardiovascular disease including coronary artery disease.  See 38 C.F.R. § 3.309(e).  Specifically, a computed tomography scan of the chest done in June 2017 was interpreted to reveal "[c]oronary arterial at thoracic aortic atherosclerosis."  Notably, however, there was no assessment of coronary artery disease and subsequent VA treatment records contain no diagnosis of such.  As the Board is prohibited from rendering medical conclusions, see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions), and because it would be error for the Board to award service connection on a presumptive basis if the Veteran does not in fact have a disease presumed to be associated with herbicide exposure, the Board finds it necessary to remand the matter for a medical opinion, and further examination, if necessary, to determine whether the evidence supports a diagnosis of ischemic heart disease.  Further, as noted above, the Veteran has raised the issue of entitlement o service connection for congestive heart failure, which should, on remand, be considered as part of the claim on appeal.

Lastly, as to the Veteran's claims for service connection for skin cancer and sebaceous cysts, VA treatment records show treatment for actinic keratosis and a prior excision of a carcinoma from the Veteran's upper lip.  The Veteran was afforded a VA skin examination in February 2011.  Notably, in requesting the examination, the RO asked that the examiner identify all current skin disorders and to then opine as to the likelihood that any skin disorder was attributable to military service.  However, the opinion offered by the examiner addressed the likelihood that that the Veteran's skin cancer was due to a result of a left arm skin condition.  The examiner then stated that because two different skin conditions were diagnosed during service and by VA, it would be mere speculation to conclude that one caused the other.

Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159 (c)(4) (2017).  Here, the VA examiner did not provide the opinion that was requested by the AOJ.  Further, because the Veteran was treated in service for various skin disorders, and because he is presumed to have been exposed to an herbicide agent, which he contends contributed to the development of his skin cancer and other skin disorders, a medical opinion regarding the likelihood that the Veteran has skin cancer or any other skin disease that is attributable to service, to include his presumed exposure to an herbicide agent is necessary to fairly adjudicate these claims.  See McLendon, supra.  Accordingly, the matter must be remanded to obtain a new VA opinion and for further examination of the Veteran, if necessary.

Accordingly, the claims remaining on appeal are REMANDED for the following action:

1.  The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who may possess additional information relevant to any of his claims remaining on appeal.  The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder.

2.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for review of the Veteran's claims folder by a VA clinician or clinicians with the appropriate expertise to render opinions regarding the likelihood that the Veteran developed COPD, skin cancer, sebaceous cysts or other skin disease, and/or heart disease, are due to service, to include his presumed in-service exposure to herbicide agents.  Arrange for the Veteran to undergo further examination if deemed necessary in the judgment of the individual designated to provide the requested opinions.

Specifically, the chosen clinician or clinicians should provide the following information and opinions:

i)  Regarding the claims for service connection for skin cancer and sebaceous cysts, the reviewing clinician should indicate whether, at any point since October 2010, the Veteran has had a recurrence of skin cancer.  The clinician should also identify all residual disabilities related to the Veteran's previously excised skin cancer.  The clinician should focus on disabilities occurring at any point since approximately October 2010 regardless of whether they resolved during the pendency of the claim.  If no skin cancer or disabilities attributable to skin cancer can be identified at any point since approximately October 2010, the clinician should so state.  The clinician should also provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's skin cancer, to include any past skin cancer, is related to his military service, to include his presumed exposure to an herbicide agent.  

The clinician should also identify all skin conditions, other than skin cancer, present since approximately October 2010.  The clinician must provide an opinion as to whether it is at least as likely as not that any currently diagnosed skin disability is attributable to the Veteran's active military service, to include, but not limited to, his presumed exposure to herbicides.  In providing this opinion, the examiner should consider the skin conditions for which the Veteran was treated in service, as well as any lay or medical evidence regarding treatment for skin conditions since service.  

ii)  Regarding the claim for service connection for heart disease, the clinician should identify all heart related conditions from which the Veteran suffers.  The clinician is asked to review the report of a June 2017 chest CT and comment on whether that record supports a diagnosis of ischemic heart disease, as defined by regulation.  If the clinician finds that a diagnosis of ischemic heart disease, to include atherosclerotic cardiovascular disease including coronary artery disease, is not supported by the June 2017 chest CT, the clinician should explain why not.  Again, if further evaluation of the Veteran is necessary to make a determination as to whether the Veteran has ischemic heart disease, the Veteran should be scheduled for a VA examination and/or any necessary testing.  

As to any identified heart disease, to include congestive heart failure, the clinician must provide an opinion as to whether it is at least as likely as not that any currently diagnosed heart disease is attributable to the Veteran's active military service, to include his presumed exposure to herbicides.  

iii)  As to the claim for service connection for COPD, the clinician is requested to review the claims folder and provide an opinion as to whether it is at least as likely as not that the Veteran has COPD that is attributable to the his active military service, to include his presumed exposure to herbicide agents.  In doing so, the clinician should identify and discuss all risk factors for the Veteran's development of COPD.

In opining as to whether it is at least as likely as not that any disability is due to the Agent Orange (or other herbicide agent) exposure, the fact that the Veteran may not have a disease presumed service connected in veterans exposed to Agent Orange should not be used as a reason for finding that this Veteran's COPD, heart disease other than ischemic disease, skin cancer, and/or other skin disease is not related to exposure to an herbicide agent.  The clinician is also reminded that mere citation to any relevant NAS report regarding Veterans and Agent Orange, without further analysis of the basis for the report's conclusion or of the particular facts of the Veteran's case, is akin to finding no direct causal relationship between the Veteran's presumed in-service herbicide exposure and his claimed disability solely because VA does not recognize presumptive service connection for that condition and, as such, is not adequate to rely upon for adjudication purposes.

A full and complete rationale for all opinions expressed is required.  Regardless of whether any clinician's opinion is favorable or negative, support for his/her opinion that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming the opinion must be set forth. 

3.  After undertaking any other development deemed appropriate, re-adjudicate the issues remaining on appeal.  If a benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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 (2012).



______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs