Citation Nr: 21071517 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-22 169 DATE: November 30, 2021 REMANDED Entitlement to service connection for heart disability, to include ischemic heart disability (IHD) and atrial fibrillation, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to March 1969. This case comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied service connection for IHD. In December 2011 the Veteran filed a notice of disagreement (NOD) and in April 2014 the RO issued a statement of the case (SOC). In June 2014 the Veteran filed a substantive appeal (via VA Form 9). In an April 2020 decision the Board remanded Veteran's claim for service connection for heart disability, to include IHD and an irregular heartbeat. As will be discussed below, the RO did not substantially comply with all of the April 2020 remand instructions and another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board regrets the additional delay. As a final preliminary matter, the Board notes that the issue on appeal was previously characterized as a heart disability, to include IHD and irregular heartbeat. The Board has recharacterized the issue as service connection for heart disability, to include IHD and atrial fibrillation, because the latter is the diagnosis rendered at the most recent October 2020 VA examination. Although the Veteran was diagnosed with supraventricular arrhythmia dating back to 2008, the Rating Schedule reflects that atrial fibrillation is a type of supraventricular arrhythmia. See 38 C.F.R. § 4.104, Diagnostic Code 7010. Entitlement to service connection for heart disability, to include IHD and atrial fibrillation, is remanded. An October 2020 VA examiner noted that the Veteran was diagnosed with supraventricular arrhythmia dating back to 2008. The VA examiner noted that the Veteran continues to have intermittent episodes of atrial fibrillation. The VA examiner opined that the Veteran's IHD and atrial fibrillation was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there is no chronic diagnosis of IHD, and his objective examination was normal. The VA examiner explained that the Veteran's symptoms are subjective only. The VA examiner noted that the Veteran is diagnosed with atrial fibrillation. His rationale for a lack of nexus was, "the VA has found no correlation that links exposure to herbicides with Atrial Fibrillation at this time." In April 2020 the Board remanded the Veteran's claim to provide the Veteran with an examination to determine the etiology of his claimed IHD. The Board specifically requested that the VA examiner provide an opinion as it relates to the Veteran's service to include his exposure to herbicide agents. Although the October 2020 VA examiner addressed the Veteran's presumed exposure to herbicide agents, he based his opinion entirely on the basis that atrial fibrillation is not among the list of diseases recognized as presumptively service-connected due to exposure to an herbicide agent under 38 C.F.R. § 3.309(e). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being related to exposure to herbicide agents, but must also determine whether his disability is otherwise the result of active service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude him from establishing service connection by way of proof of actual direct causation. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) ("To [deny] service connection... on the basis that it is not likely there is any nexus to service solely because the statistical analysis (in an IOM report) does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection"). In Polovick, the Court explained the factors affecting a direct service connection analysis when a disability is not on the presumptive list, including whether a medical professional finds studies persuasive, whether there are risk factors personal to the veteran that might be the cause of the disability for which benefits are sought, and whether the disability has manifested itself in an unusual manner. Id. at 53. In light of the above, the Board finds that the October 2020 VA examiner's opinion is inadequate and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed IHD and atrial fibrillation. If an examination is deemed necessary, one should be conducted, to include via telehealth if necessary. The clinician must opine whether it is at least as likely as not (50 percent probability or more) that the Veteran's IHD and atrial fibrillation had its onset in or is related to service, to include his exposure to herbicide agents. The fact that atrial fibrillation is not on the list of diseases presumed service connected in veterans exposed to Agent Orange should not be the basis for a negative opinion, as entitlement to service connection may still be established on a direct basis for an individual veteran based on the specific facts of his case. The clinician should consider other studies, whether they are persuasive, whether there are risk factors personal to the veteran that might be the cause of the disability for which benefits are sought, and whether the disability has manifested itself in an unusual manner. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.