Citation Nr: 1807999 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-22 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for heart condition due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Brozyna, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to March 1968 and from January 1970 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran indicated in August 2012 and in May 2016 that he did not want a hearing before the Board. For the reasons expressed below, this appeal is being REMANDED to the RO, via the Appeals Management Organization (AMO). VA will notify the Veteran if further action is required. REMAND The Veteran generally contends that he has a heart condition that is related to his service, including his presumed exposure to an herbicide agents (to include Agent Orange). He further requests that any and all additional records are retrieved in order to support his arteriosclerotic heart disease, due to Agent Orange exposure. The Veteran noted if he is allotted time, he can attempt to obtain new and relevant material evidence for his heart condition such as atherosclerotic cardiovascular disease from Dr. H. or any VA examiner or heart specialist to substantiate his claim for heart condition due to Agent Orange exposure. Finally, the Veteran requests a new medical examination regarding his arteriosclerotic heart disease, due to Agent Orange exposure, to confirm his service connection with an opinion and rationale. For the reasons discussed below, the Board finds that further development is required. First, the Veteran generally identified VA and pertinent private treatment records that have may not yet been associated with the claims file, including: VA treatment records (although the claims file contains Cheyenne and Denver VAMC records as recent as May 2016) and private treatment records related to atherosclerotic cardiovascular disease. See January 2018 Brief. As these records have been identified by the Veteran, but not yet sought or associated with the claims file, VA has a duty to seek these records and, if found, associate them with the claims file. See 38 U.S.C. § 5103A ; 38 C.F.R. § 3.159. Second, the Veteran requested a new medical examination along with an opinion and rationale for his arteriosclerotic heart disease, due to Agent Orange exposure, to confirm his service connection. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Board notes that the last VA examination took place in November 2010. Because the November 2010 VA examination findings appear to not be representative of the current severity of the heart condition on appeal, the claim must be remanded as a new VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran the opportunity to submit, or authorize VA to obtain, any additional medical treatment records either private or VA, relevant to his heart condition. 2. After the above development has been completed and all obtainable records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine whether any identified heart condition was at least as likely as not (50 percent probability or greater) caused or aggravated beyond natural progression by the Veteran's service, including his presumed herbicide agent exposure. The claims file, to include a copy of the Remand, must be made available to and be reviewed by the examiner. Any indicated evaluation studies, and tests must be conducted. To be adequate, the opinion(s) must consider the Veteran's lay statements, be based on accurate factual premises, and contain sufficient rationale to support conclusions. If any opinion cannot be rendered without resorting to mere speculation, the examiner must state whether the inability to provide the requested opinion is due to: the limits of the examiner's medical knowledge; the limits of medical knowledge in general; or the need for additional evidence that would permit the opinion to be provided. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board of Veterans' Appeals 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).