Citation Nr: 1808229 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-47 201A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for ischemic heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to October 1980, including service in the Republic of Vietnam. These matters came to the Board of Veterans' Appeals (Board) from October 2010 and April 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2016 decision the Board denied the Veteran's claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 Memorandum Decision, the Court set aside the Board's decision and remanded the matter to the Board for further proceedings consistent with the decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Court set aside and remanded the Board decision because pertinent medical records were not obtained and VA examinations relied upon by the Board are inadequate. In the Veteran's Brief submitted to the Court, it was argued that the Veteran was treated and filed claims for benefits at the Waco VA and Houston VA but that the VA made no attempt to seek or obtain records from either the Waco or Houston VA. Review of the claims file reveals that VA treatment records regarding the Veteran dated from July 2009 to January 2016 have been associated with the claims file. As such, on remand, attempts must be made to obtain and associate with the claims file VA treatment records regarding the Veteran dated prior to July 2009 and since January 2016. See 38 C.F.R. § 3.159 (2017). Efforts must also be made to attempt to obtain any records related to annual physical examinations the Veteran underwent when he worked as a civilian firefighter with the Department of Defense after retiring from the military. An August 2009 VA treatment record indicated that the Veteran had an exercise tolerance test six years prior while working as a firefighter; however, it does not appear that any attempts have been made to obtain those records. The Court further found that the July 2014 VA examination and September 2014 addendum opinion were inadequate because the examiner did not comply with the April 2014 Board remand directive that required a VA examination to be conducted, including any tests or studies deemed necessary. The examiner relied upon a test that was non-ischemic in nature and inconclusive without explaining why additional testing was not necessary. Although the examiner found that the Veteran's atypical chest pain was non-ischemic, the examiner failed to provide an explanation as to what caused his chest pain. As noted in the prior Board decision, given the Veteran's documented service in Vietnam, exposure to herbicides is conceded. Thus, at issue is whether he has ischemic heart disease or coronary artery disease, for which presumptive service connection would be warranted. 38 C.F.R. § 3.309 (e). The examination conducted on remand must include all appropriate testing. A new examination and opinion is also needed for the hypertension claim. The Court noted that the July 2014 VA examiner found that the Veteran's hypertension was less likely than not related to his military service and found that a blood pressure reading in service of 136/82 was normal however, a January 2016 VA treatment record found that the same reading was high. The Court took notice of a blood pressure chart provided by the Veteran that the Veteran argued showed the blood pressure reading to be indicative of prehypertension. The examination conducted on remand should include comment on the January 2016 finding that 136/82 was high and the statements of record regarding the reading being prehypertensive. For the purposes of the presumptive service connection provisions, "ischemic heart disease" does not include hypertension 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 (2). However, the National Academy of Sciences (NAS) has placed hypertension in the category of "limited or suggestive evidence of an association" with exposure to herbicides. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012). The opinion obtained on remand should also address whether the Veteran's hypertension is the result of in-service herbicide exposure. See 38 C.F.R. § 3.159 (c)(4). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Attempt to obtain and associate with the claims file all VA treatment records regarding the Veteran dated prior to July 2009 and since January 2016. 2. After obtaining any necessary authorization, attempt to obtain and associate with the claims file complete treatment records, to include yearly physicals, associated with the Veteran's employment as a federal firefighter with the Department of Defense. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 3. After completion of the foregoing, schedule the Veteran for a VA examination to determine the current nature and likely etiology of his hypertension and ischemic heart disease claims. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results, including a diagnosis, should be reported in detail. Based on the examination and review of the record, the examiner should address the following: (a) Does the Veteran have ischemic heart disease or coronary artery disease? In answering this question, the examiner must comment on the finding in the prior examination that testing that was non-ischemic in nature was inconclusive and, if additional testing is not performed, why it is unnecessary. (b) Is it as least as likely as not (50 percent or greater probability) that any currently diagnosed hypertension had its onset in service, manifest within one year of separation from service in October 1980 or is otherwise related to any incident of the Veteran's active duty service, specifically to include as a result of conceded herbicide exposure? In providing the opinion, the examiner must specifically address the following: (i) the in-service reading of 136/82 with regard to whether it is normal, high, or prehypertensive and a January 2016 VA treatment record with the same reading, characterized as prehypertensive, and; (ii) the National Academy of Sciences (NAS) Veterans and Agent Orange Updates, to include in 2010 and 2012, which stated that there was "limited or suggestive" evidence of an association between hypertension and herbicide exposure. In addition, the examiner must discuss whether they find the NAS Updates to be persuasive and weigh the relative risks presented by the Veteran's presumed Agent Orange exposure and other relevant factors. The examiner is advised that, although VA has not determined that hypertension qualifies for presumptive service connection based on herbicide exposure, this does not preclude a nexus to service. Instead, the examiner must consider all pertinent evidence, and offer an opinion as to whether the Veteran's hypertension is due to such exposure. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Then, readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 (2012). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).