Citation Nr: 20003604 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-14 293A DATE: January 16, 2020 REMANDED Entitlement to service connection for a cerebrovascular accident (stroke), to include residuals, claimed as secondary to a service-connected disability, or in the alternative, due to in-service exposure to an herbicide agent, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1968 to April 1970, to include service in the Republic of Vietnam. He was in receipt of a Purple Heart Medal and Combat Action Ribbon, among other awards. This matter comes to the Board of Veterans' Appeals (Board) from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. Unfortunately, during the pendency of the present appeal, the Veteran died in January 2018. Within a year of the Veteran’s demise, his widow filed an application to be substituted for her husband regarding the current appeal and a separate VA Form 21-22 (Appointment of Veterans Service Organization (VSO) as Claimant's Representative) in favor of the same VSO who represented her late husband in this matter. In a May 2018 administrative decision, the Veteran’s widow was adjudicated as a proper substitute for the Veteran by the AOJ, and thus, she is now the appellant regarding the matter before the Board. Initial matter In addition to the current appeal, during his lifetime, the Veteran perfected another appeal to the Board. After his death, the appellant’s application to continue both appeals as his substitute was granted. However, unlike the present appeal, the Veteran had requested to participate in a Board hearing in connection with the other appeal, and that request remains pending. As such, the issues subject to the Veteran’s/appellant other appeal stream will be addressed by the Board under a second cover after the outstanding hearing request is clarified and/or fulfilled. 1. Entitlement to service connection for a cerebrovascular accident (stroke), to include residuals, claimed as secondary to a service-connected disability, or in the alternative, due to in-service exposure to an herbicide agent The evidence clearly reflects that the Veteran experienced a stroke in May 2014, and he endured stroke residuals until his demise. Through various submissions, the Veteran (during his lifetime), the appellant (after the Veteran’s demise), and their representative have asserted that the May 2014 stroke and resulting residuals were (1) caused or aggravated by diabetes mellitus, type II, and/or hypertension, or (2) due to his presumed in-service exposure to an herbicide agent while stationed in the Republic of Vietnam. Initially, the Board notes that the appellant’s separate appeal stream, noted in the Introduction, includes the issue of entitlement to service connection for hypertension. As such, the issue before the Board is inextricably intertwined with the appellant’s other appeal stream, which is waiting fulfillment of a Board hearing. Further, after service connection for diabetes mellitus, type II, had been establish, the AOJ sought and obtained a VA opinion addressing whether the Veteran’s stroke and residuals were caused or aggravated by this service-connected disability. While undertaking of this necessary development is appreciated, the Board concludes that such is incomplete. Pertinently, although a cerebrovascular accident is not listed among of diseases presumed by VA to be caused by in-service exposure to herbicides, the United States Court of Appeals for Veteran’s Claims (the Court) has firmly held that a medical nexus may establish a causal link. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In light above and the of the assertions of the Veteran, the appellant, and their representative, asserting that his in-service exposure to an herbicide agent played a part in causing his stroke, the Board concludes that a remand is necessary to obtain a medical nexus opinion addressing this theory of entitlement. So that the opining VA clinician is fully informed of the Veteran’s complete disability picture, the AOJ must seek, obtain, and associated with the file and outstanding medical evidence pertinent to the Veteran’s appeal. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all outstanding records of VA treatment. 2. The AOJ must request that the appellant identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who treated the Veteran for his stroke, residuals, and any disability felt to be associated with such. After securing appropriate release(s) from the appellant, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The appellant must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. Thereafter, the AOJ must transfer the Veteran’s complete electronic file to an appropriate VA clinician to determine the etiology of his May 2014 stroke and resulting residuals. After a comprehensive review of the complete record, the VA clinician is requested to address the following: a. Was the Veteran’s stroke at least as likely as not proximately due to, or the result of, any incident of his service, to include his presumed in-service exposure to an herbicide agent? *In addressing the above question, the VA clinician is reminded that the exclusion of this disability from the list of diseases presumed by VA to be caused by in-service exposure to an herbicide agent is not dispositive in this matter. As such, any unfavorable opinion must be accompanied by rationale other than this fact. b. Was the Veteran’s stroke at least as likely as not caused or aggravated by hypertension? If the VA clinician cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the issue seeking to establish service connection for a stroke, including residuals. If any benefit is not granted to the fullest extent, the appellant and his her must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.