Citation Nr: 1820009 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 13-21 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for nerve damage of the head and neck. 2. Entitlement to service connection for nerve damage of the head and neck. 3. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1961 to August 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2012 and March 2014 rating decisions of a Department of Veteran Affairs (VA) Regional Office (RO). In February 2018, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The matters of service connection for carotid artery disease and cerebrovascular accident, and increased rating for low back disability were also previously on appeal. However, in a July 2013 correspondence (accepted in lieu of a substantive appeal) and a formal June 2015 substantive appeal, the Veteran limited the issues on appeal to the matters listed above. Notwithstanding the fact that the Agency of Original Jurisdiction (AOJ) has already reopened service connection for nerve damage of the head and neck, whether new and material evidence has been received to reopen that claim must be addressed in the first instance by the Board. Hence, what the AOJ may have determined in this regard is irrelevant. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issues of service connection for ischemic heart disease and nerve damage of the head and neck are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT A final March 2009 rating decision denied the Veteran service connection for nerve damage of the head and neck, to include as related to alleged radiation exposure, because no chronic nerve damage disability or hazardous radiation exposure was shown in service and no scientific link had been established between radiation exposure and the development of chronic nerve damage of the head or neck; evidence received since that denial includes new evidence that suggests the Veteran has chronic neurological neck pathology and alleges a previously unconsidered neck or nerve injury in service (i.e., as a result of compressing his back while reacting to a confirmed explosion during training); relates to unestablished facts necessary to substantiate the underlying claim of service connection; and raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW New and material evidence has been received to reopen service connection for nerve damage of the head and neck. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156 (2017). ORDER The claim to reopen service connection for nerve damage of the head or neck is granted. REMAND With respect to the reopened claim of service connection for nerve damage to the head or neck, the Board notes that postservice treatment records document diagnoses for neck disability and treatment for neck pathology, to include neurological impairment (i.e., radiculopathy and radiating pain). Moreover, he has alleged that he sustained injuries precipitating his current nerve disability of the head or neck in service as a result of stooping and bending to rearrange flags, as well as following a nearby explosion during training. In February 2018, he further testified that he injured his neck when he compressed his body in reaction to the explosion. At that time, he said he felt pain from his neck all the way into his back. However, he said his subsequent treatment focused primarily on the most severe injury at that time (a ruptured eardrum). A review of service treatment records shows the Veteran reported a painful stiff neck in December 1964. The Veteran also alleges that his claimed disability may be related to radiation exposure from, among other things, radar during service. Pertinently, his discharge papers show he did work as a radar technician at the time. Notably, a review of the record shows the Veteran has not been afforded an examination evaluating the nature and likely cause of his claimed disability. As the evidence certainly suggests a current disability and a corresponding in-service event, the low threshold for determining when VA must provide such an examination is met. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Turning to his alleged ischemic heart disease, the evidence clearly shows the Veteran served in the Republic of Vietnam and, therefore, herbicide agent exposure is conceded as a matter of law. What remains to be shown in this matter is whether the Veteran, in fact, has ischemic heart disease. On this matter the evidence is relatively unclear-VA treatment records includes notes that the Veteran has a history of myocardial infarction (in August 2010), but it is unclear whether these are based on review of medical records or subjective history. Curiously, the Veteran testified at the February 2018 hearing that he did not have a diagnosis for ischemic heart disease. The VA examination reports in the record are hardly any more enlightening, as a March 2012 VA examination diagnosed ischemic heart disease but provided no explanation to support the diagnosis, and a subsequent May 2012 addendum opinion indicates the opposite (but for some reason fails to acknowledge, much less discuss, the prior March 2012 findings). Because whether the Veteran has ischemic heart disease (or any other heart disability) is critical to the resolution of his claim, this matter requires further diagnostic clarification. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated records of VA or adequately identified private evaluations or treatment the Veteran has received for the disabilities remaining on appeal. 2. Ask the Veteran to clarify whether his alleged radiation exposures include ionizing radiation and, if so, conduct all appropriate development prescribed by 38 C.F.R. § 3.311 for claims based on such exposure. 3. If any records or evidence sought pursuant to the development ordered above is unavailable, the AOJ must document the efforts taken to secure such evidence and the reason for their unavailability for the record. 4. Then, arrange for the Veteran to be examined by a neurologist to determine the nature and likely cause of his alleged nerve damage of the head and neck. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: a. Please identify, by diagnosis, all neurological disabilities affecting the head or neck found on examination. All diagnostic findings (or lack thereof) must be reconciled with any conflicting evidence in the record. b. For each disability entity diagnosed, the examiner should opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran's military service or injuries therein, to include the notations of neck pain and stiffness in his service treatment records as well as his allegations of neck injury as a result of compression in reaction to a documented nearby explosion during training or bending and stooping to rearrange flags, and of radiation exposure therein. For purposes of this examination only, the examiner should take the Veteran's allegations at face value. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. Then, arrange for the Veteran to be examined by a cardiologist to determine the nature and likely cause of his alleged ischemic heart disease. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: a. Does the Veteran have ischemic heart disease? b. If not, does the Veteran have any other heart or cardiovascular disabilities (other than carotid artery disease)? c. For each such disability diagnosed, the examiner should opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran's military service, to include the conceded herbicide exposure therein. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 6. The AOJ should then review the record and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs