Citation Nr: 20032540 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 10-33 217 DATE: May 8, 2020 REMANDED Entitlement to service connection for residuals of cancer of the lymph nodes and tonsils, including due to exposure to an herbicide agent, is remanded. Entitlement to a rating in excess of 30 percent prior to October 20, 2008; and in excess of 60 percent from October 20, 2008 (excluding a temporary 100 percent rating effective from March 18, 2009 to June 30, 2009), for arteriosclerotic heart disease with hypertension status post coronary artery by graft is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1973 to September 1989. The Veteran’s DD-214 indicates four years and 11 months of prior active service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2014 rating decision, the RO, in pertinent part, increased the disability rating for the Veteran’s heart disability to 60 percent, effective October 20, 2008, to March 17, 2009, and from July 1, 2009. He was awarded a 100 percent rating for his heart disability from March 18, 2009, to June 30, 2009, based on surgical treatment. The Board previously remanded the case for further development in August 2018. The case has since been returned to the Board for appellate review. 1. Entitlement to service connection for cancer. 2. Increase rating for heart disease. The Board finds that additional development is warranted before the remaining claims on appeal are decided. The Board most recently remanded the above issues to obtain a new opinion for the Veteran’s entitlement to service connection for cancer claim, and to obtain a new examination for his entitlement to an increased rating for his arteriosclerotic heart disease claim. The record reflects that the Veteran was scheduled for VA examinations in September 2019, but that the Veteran did not appear for the examinations. In a February 2020 statement, the Veteran indicated that the RO did not provide him notice of the scheduled examinations, and that he was out of the country during his scheduled examinations. The claims file does not contain the correspondence sent to the Veteran notifying him of the scheduled examinations. Thus, without a copy of a notice letter, it is not clear if the Veteran received proper notification of the scheduled examinations. Additionally, the Board finds that the Veteran had sufficient good cause as to why he did not report for his VA examinations. On remand, the Veteran should be provided another opportunity to attend his VA examinations pursuant to the April 2018 remand. Further, the Veteran’s DD-214 reflects that the Veteran had four years and 11 months of prior service, but the Veteran’s DD-214 from that period is not in the record. Furthermore, the Veteran’s military personnel records appear to be incomplete. Therefore, the Board finds that the AOJ should attempt to verify this service upon remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s service personnel records or other verification of the Veteran’s dates of active service. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 3. Forward the claims file to an examiner to determine the etiology of the Veteran’s cancer of the lymph nodes and tonsils. The Board notes that an examination is not necessary unless so determined by the examiner. The claims folder, including this remand, must be reviewed by the specialist and such review should be noted in the medical opinion. The examiner should respond to the following question, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s cancer of his lymph nodes and tonsils, or squamous cell carcinoma, had its onset in and/or is otherwise etiologically related to his period of active duty service, including his conceded exposure to an herbicide agent. The examiner must provide a comprehensive rationale for each opinion provided. Please note that an opinion should be rendered on the relationship between an herbicide agent and the Veteran’s cancer regardless of whether the disability is listed on the presumptive list. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the agency of original jurisdiction (AOJ) should conduct additional development or supplement the record. 3. Schedule the Veteran for a VA examination to assess the severity of his service-connected heart disability. The examiner should review the file in its entirety, including this remand, to become familiar with the Veteran’s background and such review should be noted in the examination report. Exercise stress testing should be conducted, if appropriate. The examiner must indicate whether dyspnea, fatigue, angina, dizziness, or syncope are produced at workloads of (1) three or less METs, (2) greater than three, but less than five METs, (3) greater than five, but less than seven METs, (4) greater than seven, but less than ten METs, or (5) greater than ten METs. If a laboratory determination of METs by exercise stress testing cannot be done for medical reasons, the examiner should provide an estimate of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope. The examiner also should indicate whether the Veteran’s heart disability requires continuous medication; whether there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray; whether there is evidence of chronic congestive heart failure; whether there is evidence of acute congestive heart failure within the last year and, if so, whether there was more than one episode; and whether there is any left ventricular dysfunction and provide the ejection fraction percentage. The examiner should note how far back the results apply, i.e., one year, 5 years, 10 years, etc. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the claims file. 5. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 6. Then, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. K.C. Spragins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Cannaday, 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.