Citation Nr: 21069847 Decision Date: 11/20/21 Archive Date: 11/20/21 DOCKET NO. 19-30 735 DATE: November 20, 2021 REMANDED Entitlement to service connection for heart condition is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from August 1965 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a November 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The October VA Form 9 included a request for Board hearing. However, the Veteran submitted a November 2019 communication indicating his desire to withdraw his hearing request. See 38 C.F.R. § 20.704 (e). As such, the hearing has been withdrawn and the appeal will be adjudicated based on the evidence of record. 1. Entitlement to service connection for heart condition is remanded. The Veteran contends he is entitled to service connection for a heart condition that is related to his military service. The Veteran has presented several contentions and the record raises additional theories of entitlement that have not been addressed. For this reason, and as discussed below, the Board finds remand necessary for further development and to obtain a medical opinion. While the Veteran's September 2018 claim notes the disability as "A-fib" (atrial fibrillation), the evidence shows he has received several related diagnoses throughout the appeal period. When a Veteran files a claim for compensation, he is seeking service connection for his symptoms, regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Court held that that the scope of a disability claim includes any disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and other information of record. While the claim and rating decision specifies atrial fibrillation, the Board finds it appropriate to recharacterize the issue as specified on the title page of this decision. The Veteran was provided a heart condition examination in November 2018 in relation to his claim. The examiner diagnosed the Veteran with atrial flutter/sinus tachycardia, noting a lack of objective evidence to diagnose atrial fibrillation. The examiner concluded the Veteran's condition was less likely than not incurred in or caused by service. He reasoned that x-ray imaging was negative, and any in-service complaints of chest pain were related to asthma rather than a cardiac condition, and therefore no nexus was found. However, the Board finds the Veteran's VA examination inadequate to adjudicate the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the examiner concluded the Veteran did not present objective evidence of atrial fibrillation at the November 2018 examination, the remainder of the medical evidence shows several diagnoses and treatment that must be reconciled. Private and VA treatment records indicate the Veteran has received diagnoses or treatment for atrial fibrillation, cor pulmonale, cardiomegaly, bradycardia, and indications of coronary artery disease (CAD), coronary arteriosclerosis, coronary artery calcification, and silent myocardial infarction. VA primary care received throughout 2019, after his VA examination, shows continued notations of CAD and atrial fibrillation. The Veteran's October 2019 VA Form 9 asserts his heart condition has worsened and he receives frequent cardiology treatment. In his December 2018 NOD, the Veteran indicated he received new medications for his heart condition. This is supported by a November 2019 medication list citing several medications for cardiac conditions. Additionally, the examiner's reliance on an absence of corroborating service treatment is improper in formulating a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The VA examiner did not provide a full discussion of the evidence of record, to include consideration of lay statements, nor is the conclusion supported by a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). For the reasons that follow, an examiner must address additional considerations such that the Board may make an informed decision on the issues. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Veteran's VA Form 9 raises a new theory of entitlement that has not been developed or considered by a medical examiner. The Veteran asserts his heart condition is related to exposure to herbicide agents. Military personnel records show the Veteran's military occupational specialty (MOS) of wheel and vehicle mechanic with thirteen months of foreign service in Korea during the Vietnam War. However, the record is not clear as to whether the Veteran's service in Korea meets the criteria for presumed exposure to herbicide agents. See 38 C.F.R. § 3.307 (a)(6)(iv). The Board notes that, even when presumptive service connection is precluded, a grant of service connection may be made on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, further development on the issue, including research in conjunction with appropriate sources and production of a formal finding, is necessary. As the Veteran's request to provide testimony was withdrawn, the RO should request he submit a statement in support of this contention, to include any relevant information that will aid in confirming herbicide exposure. If the Veteran is confirmed to have served in an area where tactical herbicides were deployed, a medical opinion addressing whether the Veteran's exposure is at least as likely as not causally related to any current diagnosis of heart condition is needed. Additionally, the record reasonably raises the theory of secondary service connection. The Veteran has been service connected for chronic obstructive pulmonary disease and bronchial asthma since his 1968 separation from service and is currently in receipt of a 60 percent disability rating. The record indicates, prior to the initiation of the Veteran's 2018 claim for heart condition, cardiac conditions were noted during VA examinations for his pulmonary disease as early as 2004. See VA Examination, 2/18/2004, pg. 2/6; VA Examination, 3/10/2007, pgs. 5, 7, 13/20. C&P Exam, 5/21/2007. Frequent VA treatment for his pulmonary disease shows related findings and evaluations for cor pulmonale in 2007, abnormal echocardiograms in 2007, abnormal electrocardiograms in 2015, and coronary artery abnormalities in 2016. Therefore, an examiner must opine whether the Veteran's current heart condition was caused or aggravated by his service-connection pulmonary disease. Accordingly, the matters are REMANDED for the following action: 1. Obtain any outstanding private and VA treatment records and associate them with the file. 2. Request information from the Veteran concerning his service in Korea and how he believes he was exposed to herbicide agents. 3. Submit an information request to the appropriate agency to determine whether the Veteran's period of service in Korea resulted in exposure to herbicide agents. 4. After the above development, provide the Veteran's claims file to the appropriate examiner to obtain an addendum opinion on the Veteran's heart condition. Following review of the evidence and consideration of lay statements, the examiner is asked to provide a reasoned response to the following: (a.) Is it at least as likely as not (a 50 percent likelihood) that any acquired heart condition was incurred in or caused by the Veteran's active-duty military service? Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. (b.) Is at least as likely as not (at least a 50 percent likelihood) that the Veteran's service-connected COPD and bronchial asthma proximately caused the Veteran's heart condition? Attention is invited to the VA examinations for pulmonary conditions on 2/18/2004, pg. 2 of 6; 3/10/2007, pgs. 5, 7, and 13 and 20; and on 5/21/2007, all of which note cardiac disabilities. (c.) Is it at least as likely as not (a 50 percent likelihood) the Veteran's service-connected COPD and bronchial asthma aggravated beyond natural progression the Veteran's heart condition? Note that aggravation in this context means any incremental increase in the non-service-connected disability (i.e., any additional impairment of earning capacity) caused by the service-connected disability. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tabitha Chapman, Associate 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.