Citation Nr: 21068481 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-48 107 DATE: November 10, 2021 REMANDED Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for a dental disability, for treatment purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to May 1973. In March 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2020, the Board remanded the matters on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since returned to the Board for the purpose of appellate disposition. The Board also remanded the matters of entitlement to an increased initial rating for right foot metatarsal with Morton's neuroma and entitlement to service connection for right foot (other than metatarsal with Morton's neuroma) and left foot disabilities. Following the Board's remand, in March 2021, the AOJ issued a rating decision granting service connection for right and left foot disabilities (including acquired pes cavus, plantar fasciitis and hallux valgus) representing a full grant of the matters previously on appeal. Accordingly, they are no longer before the Board. In that same decision, the AOJ also granted service connection for Morton's neuroma of the left foot. The rating for this disability was combined with the previously assigned 10 percent rating assigned for right foot metatarsal with Morton's neuroma. In May 2021, the Veteran submitted a VA Form 10182, Notice of Disagreement, appealing the ratings assigned for the right and left foot Morton's neuroma and right and left foot disabilities (pes cavus, plantar fasciitis, and hallux valgus). This matter has been separately docketed at the Board and will be addressed in a subsequent decision. To the extent that the Veteran has previously raised allegations that VA has altered his medical records pertaining to his foot disabilities, such allegations are not relevant to the matters currently before the Board. As noted in the Board's September 2020 decision and remand, the Veteran had previously submitted VA Form 10182s pertaining to claims related to tinnitus, hearing loss and degenerative arthritis of the lumbar spine. These matters have also been separately docketed and will be subject of a future Board decision. Finally, with respect to the Veteran's claim for service connection for a dental disability for compensation purposes, this claim was referred to the AOJ for initial adjudication. This matter was adjudicated in an April 2021 rating decision. The Veteran is invited to file a review opinion with this decision if he disagrees with the decision on his claim. With respect to the remaining claims, although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a heart disorder is remanded. During the Veteran's Board hearing, he reported that he underwent a root canal in service, and shortly thereafter began experiencing headaches and chest symptoms. He explained that it was discovered after service the dentist had left a file in the tooth. He contended that the file caused a bacterial infection which caused cardiomyopathy. After he had this same tooth removed in 2007, his enlarged heart started decreasing. In the Board's September 2020 remand, the Board noted that the Veteran's service treatment records contained numerous references to chest pain and generalized weakness, which the Veteran asserts were the result of the in-service dental procedure. In addition, a root canal of the affected tooth was noted. The Board instructed that the Veteran be afforded a VA examination to determine the nature and etiology of the claimed heart disorder. The examiner was asked to provide an opinion specifically discussing the documented chest pain and weakness noted in reports in December 1971, March 1972, and April 1972. In addition, the examiner was asked to address whether the Veteran's current heart disorder was due to/aggravated by the in-service dental procedure, and specifically address the Veteran's allegation that his heart disorder stemmed from a botched root canal. In the September 2020 examination, the Veteran provided a negative nexus opinion. The supporting rationale, however, is not clearly stated. The examiner noted that "Cardiomyopathy is a Viral illness with URI documented in April 1972 and Strep throat in April 1972 with prophylaxis antibiotic (Tetracycline) which would have prevented the complication of Rheumatic Heart Disease and apparently was later found to be a URI (Viral-which is why symptoms persisted after Strep throat was treated with Tetracycline) but Veteran did not become symptomatic until later and reports several unknown illness that more than likely were viral illness that later caused the Idiopathic Cardiomyopathy." The Board is unable to decipher the examiner's discussion of the Veteran's viral illness history and it is unclear when the "several unknown illness" occurred. When asked to address the reports of chest pain, weakness and similar symptoms in service, the examiner indicated that he was "unable to find these referenced service treatment records" and therefore could not comment. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the foregoing, the Board finds that remand is warranted to afford the Veteran an additional examination with medical opinion based on full consideration of the Veteran's documented medical history and assertion, and supported by clearly-stated rationale. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for a dental disability, for treatment purposes, is remanded. As indicated in the Board's previous remand, the regulation pertaining to service connection for dental disabilities for treatment purposes was amended, effective February 29, 2012, to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. See Proposed Rules, Dental Conditions, 76 Fed. Reg. 14,600 (Mar. 17, 2011); Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for entitlement to service connection for a dental disability for treatment purposes only after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). The Board instructed that the Veteran's dental claim be referred to the VHA for development and adjudication. Subsequent to the Board's remand, it appears that the AOJ attempted to contact the VHA to refer the Veteran's dental claim for treatment purposes. However, a May 2021 VA Form 10-7131 indicates that the VHA requested further clarification on the claim, but did not respond to the AOJ communication regarding what clarification was needed. No further development was undertaken and it does not appear that the Veteran's basic eligibility requirements were determined by VHA, as indicated in July 2021 Supplemental Statement of the Case noting that the claim was going to be referred to VHA. Remand is accordingly warranted to comply with the Board's previous remand instructions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any current heart disorders, to include cardiomyopathy and enlarged heart. The examiner must opine as to the following: (a) Is it at least as likely as not that any of the Veteran's current heart disorder(s) is related to an in-service injury, event, or disease? The examiner should specifically discuss the documentation of chest pain, weakness, and other symptomatology in December 1971, March 1972, and April 1972, as well as any other pertinent symptoms noted in the Veteran's service treatment records. (b) Is it at least as likely as not that the Veteran's current heart disorder is caused or aggravated by in-service dental treatments and/or procedures? Specifically discuss the Veteran's allegations that his heart disorder is related to a bacterial infection that stemmed from a botched root canal in service, the result of which a dental file was removed after service. The examiner should consider and address the Veteran's contention that his enlarged heart had decreased since the tooth was removed in 2007. The examiner is also advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached 2. Refer the claim for dental treatment to the appropriate VA Medical Center (VAMC) of VHA for initial dental treatment consideration. The claim must then be sent to VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after the VHA determines that a Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.