Citation Nr: 1809027 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 09-00 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a heart condition for accrued benefits purposes. 2. Entitlement to service connection for hypertension for accrued benefits purposes. 3. Entitlement to service connection for a right hand disability for accrued benefits purposes. 4. Entitlement to service connection for a right ankle disability for accrued benefits purposes. 5. Entitlement to service connection for a left ankle disability for accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. He died in June 2009 and the appellant is claiming as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This case is currently under the jurisdiction of the RO and Pension Center in Philadelphia, Pennsylvania. In July 2009, the appellant submitted an application for Dependency and Indemnity Compensation (DIC), Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable). In October 2013, the Board determined that, because the appellant's claim for DIC was received within one year of the Veteran's death, under 38 U.S.C. § 5121A and the proposed rule, it had to be construed as a request for substitution. The Board then remanded this matter for the adjudication of substitution. In an August 2014 letter, the RO determined that the appellant applied for and was a proper substitute claimant with respect to the Veteran's pending appeal. As such, the Board finds that the appellant has been substituted as the claimant with respect to the issues on appeal. See 38 U.S.C. § 5121A (West 2012); 38 C.F.R. § 3.1000 (2017). The appellant's application for accrued benefits also served as an application for substitution as claimant. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The record reflects that, prior to his death the Veteran put forth several theories as to how his conditions are related to his active service. Specifically, the Veteran argued that, prior to service, he had a preexisting heart condition that was noted on his entrance examination, and his active service aggravated that condition. On appeal, the appellant also contends that the Veteran was assigned to the 8th Army, 4th missile unit, which had rotations and duty assignments along the demilitarized zone (DMZ) - the 8th Army 226th Signal Co (north) provided support to the United Nations Command Security Battalion - Joint Security Area (UNCSB-JSA), and as a Vietnam War Veteran, the Veteran's heart condition was the result of herbicide agent exposure in Korea. The Veteran was diagnosed with coronary artery disease and rheumatic valvular heart disease, and he had coronary bypass surgery prior to his death. See January 2003 medical record from private physician Dr. G.G.T.. As ischemic heart disease is a presumptive disability for exposure to herbicide agents under 38 C.F.R. § 3.309(e), the remaining inquiry for service connection of a heart condition is whether or not the Veteran was exposed to herbicide agents during active duty service. In support of both contentions, the Veteran and appellant submitted military documents that showed military support was requested from the 4th Missile Unit/8th Army along the DMZ in 1968/1969; and statements from the Veteran, his sister and daughter that he had a preexisting heart condition (heart murmur and abnormal heartbeat) prior to service, which was aggravated by active service. Military personnel records confirm that the Veteran served during the presumptive period; however, his service was not in Vietnam but he was assigned to Camp Page in ChunChon, South Korea from March 1970 to March 1971. The appellant asserts, however, that the Veteran was exposed to herbicide agents while in Korea. VA has developed specific procedures to determine whether a Veteran was exposed to herbicide agents in locations other than the Republic of Vietnam, to specifically include the Korean DMZ. See VA's Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, para. 4(b). The Veteran was assigned to the 226 Signal Co., 4th US Army Missile Command (USAMICOM), Co C (S&T), 197th Support BN (WeWM CoA), 72nd Engineer Co (WAR 2AA-A), food service. The appellant submitted documentation from the United Nations Command Security Forces indicating that The United Nations Command Security Battalion - Joint Security Area was the Eighth Army's premier war fighting battalion provided security for and patrol of a portion of the DMZ between the Republic of Korea and North Korea, and that they requested support from the Veteran's division. In August 2017, JSRRC responded to the AOJ's research request to determine if the Veteran was indeed exposed to herbicide agents during active duty service. The response noted that the records from 1970 documented that the 226th Sig Co was stationed at Camp Page near ChumChon, South Korea and that there was a mission of the 226th Sig Co to provide tactical communications for the 4th USAMICOM, as well as personnel and equipment for fixed secure teletypewriter facility while operating the 4th USAMICOM switchboard. However, the records did not document the use, storage, spraying or transporting of Agent Orange; nor did it document any specific duties performed by the 226th Sig Co unit members along the DMZ. The appellant provided statements from the Veteran noting his job was to provide and set up communication with central command and with each missile, and these missiles were deployed in undisclosed locations along the DMZ. The AOJ should submit a follow-up records search to the JSRRC to determine whether the Veteran's unit (4th USAMICOM) provided support along the DMZ in 1971 as well, as the Veteran served in South Korea from March 1970 to March 1971, not just in 1970. As to the claims for entitlement to service connection for hypertension, and right hand and bilateral ankle conditions, for a substitute claimant, and for accrued benefits purposes, no VA opinion has been provided on the matters. VA will provide a medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the Veteran qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2) (West 2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Service treatment records reveal no complaints, findings, or diagnoses related to hypertension. The Veteran had one normal blood pressure reading in service of 130/80. See service treatment records for February 1971 report of medical examination. The appellant alleges that the Veteran's hypertension is secondary to his heart condition. The evidence of record noted a diagnosis of hypertension. See November 2008 VA medical record. The record of evidence notes a diagnosis of hypertension during the pendency of the Veteran's claim, but no additional evidence has been provided to support a contention of direct service connection. As the Veteran contends secondary service connection, if he is found to be service connected for a heart condition, a VA opinion must be afforded to determine whether hypertension was caused or aggravated by his heart condition. The service treatment records show that the Veteran was seen for a rash on his hands in August 1970. As a cook in the service, he was advised not to handle any food until his hands cleared. The Veteran provided a statement noting his right arm was swollen three times and placed in a sling; and as a result, he had scarring in the webbing of his finger where a scalpel was used to cut it and drain the arm. He stated that this resulted in stiffness and soreness in the right arm and hand. A February 2006 physician noted that the Veteran had no chapping or cracking of his hands. The Veteran later noted in an October 2008 VA medical record that his hand broke out in a rash since his childhood and that he developed a fungal infection on his right arm and hand that made his arm swell, which had to be drained. He noted that, since leaving the military, he continued to break out in rashes about twice per year, usually in hot weather, and that he self-treated his arm by soaking it in salt water. The Veteran alleged that he was entitled to service connection for his right hand stiffness and arthritis scarring. As all records are not associated with the claims file, to include records demonstrating a diagnosis of arthritis and/or drainage of his right arm/hand, a determination cannot be made on this issue until such records are obtained. The service treatment records show that the Veteran was seen for swollen and painful ankles in May 1969, and he was placed on light duty for three days. The Veteran noted in a statement in support of his claim that he injured his ankles participating in a jump during boot camp, and that he had issues with his ankles since service. The evidence of record noted a diagnosis of arthritis. See January 2006 medical record by private physician Dr. M.R.. As the record noted a diagnosis of arthritis during the pendency of the Veteran's claim, and service treatment records indicate an injury in service to his ankles, a VA opinion must be afforded to determine whether this disability was related to his active service injury. Accordingly, the case is REMANDED for the following action: 1. Contact the JSRRC and request that they verify whether the Veteran was exposed to herbicide agents at any time in South Korea, specifically from March 1970 to March 1971 while he was assigned to Camp Page near ChumChon, South Korea, or in assisting the 4th USAMICOM. Separate responses must be provided for each 60-day period from March 1970 to March 1971. A copy of the request(s) to the JSRRC and the responses for each 60-day period from March 1970 to March 1971 should be included in the claims file. All attempts and responses should be documented. 2. Obtain all outstanding VA records, to include VA medical records since November 2008. 3. Forward the entire record to a medical professional for an opinion assessing the nature of the Veteran's heart condition. The examiner should respond to the following: a) List all diagnoses of heart conditions the Veteran had during the pendency of his claim. b) Did a heart condition clearly and unmistakably (undebatably) preexist service and clearly and unmistakably undergo no aggravation in service? c) If the heart condition clearly and unmistakably did not preexist service, is it at least as likely as not (50 percent probability or greater) that the heart condition had its onset in, or is otherwise related to any incident of his active service, to include the physicality of basic training? In offering the opinions, the examiner should consider the following evidence: * The Veteran's statement that he had a preexisting heart condition prior to service, but he was still drafted and served on active duty despite the entrance examiner noting his heart condition. * The statements of the Veteran's sister and daughter noting he was treated for a heart murmur and abnormal heartbeat since childhood; and he was placed on daily penicillin treatment and could not participate in his school's physical education program. All opinions must be supported by a clear rationale and reasoning behind the opinion. 4. Forward the entire record to a medical professional for an opinion assessing the nature of the Veteran's hypertension. The examiner should respond to the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension had its onset in, or is otherwise related to any incident of his active service, to include the physicality of basic training? b) Notwithstanding the answer to section a), is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension was caused by or aggravated beyond its natural progression by his heart condition? Please note that the examiner must address both causation and aggravation. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. All opinions must be supported by a clear rationale and reasoning behind the opinion. 5. Forward the entire record to a medical professional for an opinion assessing the nature of the Veteran's bilateral ankle condition. The examiner should respond to the following: a) Did the Veteran in fact have a bilateral ankle disability, to include arthritis of either the left or right ankle? b) If so, is it at least as likely as not (50 percent probability or greater) that the Veteran's ankle disability had its onset in, or is otherwise related to any incident of his active service, to include injuring his ankles after jumping off a truck during basic training? In offering the opinions, the examiner must consider the following evidence: * The Veteran's contention that during basic training he hurt his ankles jumping from a truck; and his drill sergeant made him continue with training despite his injury. * January 2006 medical records that note arthritis in his ankles. All opinions must be supported by a clear rationale and reasoning behind the opinion. 6. Readjudicate. 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 (West 2012). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).