Citation Nr: 1807195 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-26 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a compensable initial evaluation for bilateral hearing loss. 2. Entitlement to service connection for a heart disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from July 1968 to November 1969 and from November 1969 to July 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2012 (bilateral hearing loss) and June 2012 (heart disability) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board has recharacterized the Veteran's service connection claim for ischemic heart disease broadly as a single claim for any heart disability. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). In November 2017, the Veteran testified at a video conference hearing before the undersigned Veterans' Law Judge. The hearing transcript is of record and indicated the Veteran reported he had additional evidence to submit, although no additional evidence was associated with the claims file by the RO on the date of the hearing. However, the Board hearing transcript reflects the record was held open for 60 days from the date of the hearing to allow the Veteran to submit additional evidence. Subsequently in November 2017, the Veteran submitted additional private medical records and did not waive review thereof by the Agency of Original Jurisdiction (AOJ). However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests consideration by the AOJ. See VBA Fast Letter 14-02. Here, the Veteran's substantive appeals for these claims were filed after February 2, 2013. Moreover, the Board interprets such exception as applying only to evidence submitted by the Veteran, as is the case here. Thus, the Board will proceed with appellate review. Although the record reflects that in December 2017 and January 2018 correspondence, the Veteran was invited to participate in the Rapid Appeals Modernization Program (RAMP), the appeal has already been activated at the Board and therefore is not eligible for RAMP. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2017). With respect entitlement to a compensable initial evaluation for bilateral hearing loss, when the evidence indicates that a disability has worsened since the last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A (d) (West 2012); 38 C.F.R. § 3.159 (c)(4) (2017); see also Weggenmann v. Brown, 5 Vet. App. 281 (1993). In November 2017 testimony, the Veteran reported his service-connected hearing loss had worsened since his last VA audiological examination conducted in June 2011. Thus, as the evidence reflects that the Veteran's bilateral hearing loss has increased in severity, a new examination is required. With respect to entitlement to service connection for a heart disability, a VA examination has not been conducted. A May 2017 private medical record reflects, in pertinent part, assessments of chronic diastolic (congestive) heart failure and hypertensive heart disease with heart failure. The Board finds that the Veteran did have service in Vietnam and is presumed to have been exposed to tactical herbicide agents. Although a diagnosis of ischemic heart disease, which may be presumptively associated with exposure to tactical herbicide agents, is not of record, a veteran is not precluded from presenting evidence that a claimed disability is due to or the result of tactical herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). Thus, the Board finds that it is necessary to remand the claim for a heart disability for a VA examination with an etiological opinion, to include consideration of exposure to tactical herbicide agents by the prospective examiner. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as the Veteran's claim for his heart disability is being remanded for other matters, the Board concludes updated private treatment records should be obtained and associated with the record. As noted above, in November 2017, the Veteran submitted private medical records dated from J. M., M.D, most recently dated in May 2017; however, the Board is unclear as to whether such records are complete. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Thus, any additional private treatment records should be obtained, to the extent possible, during the appeal period at issue, from Dr. J. M., as well as relevant records from any additional provider which may be identified by the Veteran. Finally, additional VA treatment records should be obtained. In this regard, a September 25, 2009 VA treatment record, from the Overton Brooks VA Medical Center (VAMC), and a February 11, 2014 VA treatment record, from the Alexandria VA Health Care System, each indicated audiometric testing was performed to measure the Veteran's hearing impairment, but did not provide the actual test results. Thus, VA treatment records, from the Overton Brooks VAMC, to include September 25, 2009 audiometric testing results as well as updated records since August 2014, and from the Alexandria VA Health Care System, to include February 11, 2014 audiometric testing results as well as updated records since July 2014, should be obtained and associated with the record. See 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records, from the Overton Brooks VAMC, to include September 25, 2009 audiometric testing results as well as updated records since August 2014, and from the Alexandria VA Health Care System, to include February 11, 2014 audiometric testing results as well as updated records since July 2014, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Obtain the necessary authorization from the Veteran and then attempt to obtain updated records of relevant treatment of the Veteran for his heart disability, from J. M., M.D., as well as relevant records from any other identified provider. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of each heart disability that was present during or proximate to the claim. The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, must be accomplished. The examiner is asked to determine whether the Veteran is diagnosed with ischemic heart disease. The examiner should provide an opinion as whether it is at least as likely as not that any heart disability, other than ischemic heart disease, diagnosed proximate to or during the claim, was present in service, was caused by service, or is otherwise related to service, to include as due to presumed in-service exposure to tactical herbicides. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it. Each opinion offered must be supported by a complete rationale. 4. Schedule the Veteran for VA examination to determine the current severity of his service-connected bilateral hearing loss. The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, must be accomplished. The examiner is requested to identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner should consider the effect of bilateral hearing loss on occupational and daily functioning of the Veteran. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Any opinion offered must be supported by a complete rationale. 5. The Veteran must be notified that it is his responsibility to report for any scheduled examination, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). 6. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them the appropriate 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 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 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).