Citation Nr: 21068121 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 13-19 476 DATE: November 9, 2021 REMANDED Entitlement to service connection for a heart condition, to include ischemic heart disease, due to herbicide exposure or alternatively, due to medication prescribed by VA treatment providers, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1968 to July 1969, to include service in the Republic of Vietnam. The Veteran died in March 2017. The appellant is the Veteran's surviving spouse, who was accepted as a substitute in July 2018, for his claim of entitlement to service connection for a heart condition, to include ischemic heart disease. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the appellant testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing. A transcript of that hearing is associated with the claims file. This case was previously before the Board in February 2020 and May 2021, when it was remanded for additional development. The matter has now been returned to the Board for appellate review. Entitlement to service connection for a heart condition, to include ischemic heart disease, due to herbicide exposure or alternatively, due to medication prescribed by VA treatment providers is remanded. The Board regrets any further delay in this matter but finds that additional development is required before the Board can review the Appellant's claim. First, the Board notes that the Appellant seeks service connection on alternative theories of entitlement. However, the first theory, that the Veteran had a heart condition due to herbicide exposure, has not been addressed. On remand, a medical opinion must be obtained that addresses whether the Veteran's claimed heart condition, however diagnosed, was due to his conceded herbicide exposure. Second, the Board finds that the alternative theory of entitlement, that the Veteran's claimed heart condition was due to medication prescribed by VA treatment providers, still has not been adequately addressed. Pursuant to the directives given in the most recent Board remand issued in May 2021, an examiner was to provide opinions on whether the Veteran contracted a heart condition, to include pericardial effusion, status-post pericardiocentesis: (a) as a result of the medical care, or a lack thereof, received at a VA medical center; (b) as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part (i.e., did the VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider); and, (c) as a reasonably foreseeable outcome of the treatment received. To this end, the Board specifically instructed: The examiner must specifically consider the October 2014 VA examiner's opinion noting that medical literature indicates that Hydralazine can result in pericardial effusion and must discuss whether it is customary to run tests for drug-induced lupus for patients who are prescribed Hydralazine for extended periods. If the examiner finds that such testing is customary, then the examiner must discuss whether the failure to run such testing in this Veteran's case amounts to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. A thorough rationale must be provided for all opinions expressed. A new medical opinion was obtained in May 2021. The examiner did not address the October 2014 VA examiner's opinion; did not address the medical literature indicating Hydralazine can result in pericardial effusion; and did not address whether it is customary to run tests for drug-induced lupus for patients prescribed Hydralazine. Instead, the examiner stated only, "Pericardial effusion is not uncommonly associated with hepatic disease. The Veteran's pericardial effusion was not caused by pericardiocentesis." As for the VA's standard of care, the examiner stated only, "Review of VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed and timely consults were obtained, the standard of care was met in this case." No rationale or additional detail was provided. A remand by the Board confers on the claimant a legal right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. As such, the Board finds that there was not substantial compliance with the May 2021 remand and will once again remand this claim. The matters are REMANDED for the following action: Obtain a medical opinion from a qualified clinician to determine the nature and etiology of any diagnosed heart condition, to include ischemic heart disease. The examiner must specifically and thoroughly address each of the following: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran had any heart disorder, to include ischemic heart disease, pericardial effusion, and status-post pericardiocentesis, due to herbicide exposure. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran contracted a heart condition, to include ischemic heart disease, pericardial effusion, and status-post pericardiocentesis, as a result of the medical care, or a lack thereof, received at a VA medical center, to include medication prescribed by VA treatment providers. (c) If so, whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's heart condition, to include ischemic heart disease, pericardial effusion, and status-post pericardiocentesis, developed as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part (i.e., did the VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider). (d) Based upon the specific facts and circumstances of this Veteran's case, was the Veteran's heart condition, to include pericardial effusion, status-post pericardiocentesis, a reasonably foreseeable outcome of the treatment received? In formulating these opinions, the examiner must specifically consider and discuss the October 2014 VA examiner's opinion noting that medical literature indicates that Hydralazine can result in pericardial effusion. The examiner must also specifically discuss whether it is customary to run tests for drug-induced lupus for patients who are prescribed Hydralazine for extended periods. If the examiner finds that such testing is customary, they must specifically discuss whether the failure to run such testing in this Veteran's case amounts to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. A thorough rationale must be provided for all opinions expressed. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jiggetts, Tenisha 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.