Citation Nr: 21071699 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-50 453 DATE: December 1, 2021 ORDER Entitlement to service connection for atherosclerotic cardiovascular disease is granted. REMANDED Entitlement to service connection for atrial fibrillation with congestive heart failure and cardiomyopathy, to include as secondary to hypothyroidism, diabetes mellitus, type II, and/or atherosclerotic cardiovascular disease, is remanded. FINDINGS OF FACT 1. The Veteran had active wartime service in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. 2. The Veteran has a current diagnosis of atherosclerotic heart disease that has manifested to a degree of at least 10 percent disabling, and the presumption that the Veteran's atherosclerotic cardiovascular disease was incurred by in-service exposure to herbicide agents is not rebutted. CONCLUSION OF LAW The criteria for entitlement to service connection for atherosclerotic cardiovascular disease are met. 38 U.S.C. §§ 1110, 1113, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7005. REASONS AND BASES FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1967 to March 1976 and from March 1981 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In July 2021, the Veteran testified at a virtual hearing before the undersigned. The Board has bifurcated the appeal to conform with the evidence of record and to provide a favorable decision on part of the appeal without delay. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an appeal is generally within the Board's discretion). 1. Entitlement to service connection for atherosclerotic cardiovascular disease is granted. The Veteran asserts that his atrial fibrillation with congestive heart failure and cardiomyopathy is related to herbicide agent exposure during his active service in The Republic of Vietnam. See August 2015 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits (claimed as "Heart Cond [sic] (Exposure to Agent Orange)"). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Atherosclerotic cardiovascular disease is listed among the diseases presumed to be associated with exposure to herbicide agents (such as those that were found in Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Thus, if the Board determines that the Veteran was actually or presumptively exposed to herbicide agents in service, and if atherosclerotic cardiovascular disease has manifested to a degree of at least 10 percent disabling, then service connection may be granted based on the presumption that atherosclerotic cardiovascular disease is the result of the Veteran's in-service herbicide agent exposure. See 38 C.F.R. §§ 3.307, 3.309. However, this presumption of service incurrence may be rebutted by competent medical evidence that a claimed condition is due to an intercurrent injury or disease. 38 C.F.R. § 3.307(d). The Veteran's in-service exposure to herbicide agents in the Republic of Vietnam is conceded. See, e.g., July 2021 Department of Veteran's Affairs Memorandum, Subject: Herbicide Exposure Verification Memo (documenting: "Exposure to herbicides is conceded based on the Veteran's duty or visitation (boots on ground) in the Republic of Vietnam.") The Veteran's current cardiac-related diagnoses include atherosclerotic heart disease, congestive heart failure, non-ischemic cardiomyopathy, paroxysmal atrial fibrillation, and the use of an implantable cardioverter-defibrillator. See, e.g., April 2021 Memorandum from Mercy Clinic Cardiology Heart Hospital; December 2015 Heart Disability Benefits Questionnaire (DBQ); May 10, 2016 VA treatment note (extensive atherosclerotic disease); see also November 2016 VA treatment note (documenting atherosclerotic changes in the coronary arteries, observed coincident with cardiac device implantation). Additionally, the greater weight of the evidence does not show that the Veteran's atherosclerotic cardiovascular disease was due to an intercurrent injury. While the December 2015 VA Heart DBQ examiner partially attributed the Veteran's congestive heart failure to tobacco use, no such opinion has been rendered regarding any etiology or intercurrent cause or risk factor for the Veteran's atherosclerotic cardiovascular disease, and the Board refuses to remand for the sole purpose of developing evidence against the claim. See December 2015 DBQ; 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"). Moreover, the December 2015 Heart DBQ examiner noted the Veteran's heart disability requires continuous medication for control; although the Veteran's atherosclerotic heart disease was not specifically mentioned in this examination report, the Board resolves all reasonable doubt in the Veteran's favor in finding that his atherosclerotic heart disease is of a compensable severity. 38 C.F.R. § 4.104, Diagnostic Code 7005. Thus, as the Veteran's in-service exposure to herbicide agents has been established, and there is no affirmative evidence of record conclusively showing an intercurrent etiology for his atherosclerotic cardiovascular disease, and atherosclerotic cardiovascular disease manifested to a degree of at least 10 percent disabling, the Board concludes that the criteria for presumptive service connection for atherosclerotic cardiovascular disease are met. REASONS FOR REMAND 2. Entitlement to service connection for atrial fibrillation with congestive heart failure and cardiomyopathy, to include as secondary to hypothyroidism, diabetes mellitus, type II, and/or atherosclerotic cardiovascular disease, is remanded. At the Board hearing, the Veteran asserted that his now service-connected hypothyroidism and diabetes mellitus, type II contribute to his atrial fibrillation. See Board Hearing Transcript at 9-12; see also August 6, 2021 Attorney Memorandum (asserting that the Veteran's heart disorders are secondary to service-connected conditions presumed caused by herbicide exposure, specifically: Diabetes Mellitus, type II; Hypothyroidism; and Aortic Sclerosis). The Veteran's representative included medical literature supporting secondary causation, though such literature was not specific to the Veteran's disability and medical history. Thus, as there is a current disability, one or more service-connected disabilities, an indication that the current disability may be related to the service-connected disabilities, but insufficient evidence to decide the claim, the duty to secure an examination and medical opinion has been triggered. See 38 C.F.R. § 3.159(c)(4). Moreover, given the instant decision, the record also raises the issue of whether there is a causal relationship between the Veteran's newly-service connected atherosclerotic coronary disease and his other heart conditions, which should also be addressed by the VA examiner on remand. Additionally, complete VA treatment records and any outstanding relevant private treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion addressing the etiology of all cardiac disorders other than atherosclerotic heart disease. The entire claims file should be made available to and reviewed by the examiner, including a copy of this remand. No additional examination is needed unless the examiner determines otherwise. The examiner is requested to address the following: (a) Please diagnose all cardiac disorders other than atherosclerotic heart disease present since August 2015. If diagnoses of congestive heart failure, non-ischemic cardiomyopathy, and paroxysmal atrial fibrillation requiring use of an implantable cardioverter-defibrillator are not warranted, please explain your conclusion given the diagnoses of the same in the Veteran's record. See, e.g., April 2021 Memorandum from Mercy Clinic Cardiology Heart Hospital; December 2015 Heart Disability Benefits Questionnaire (DBQ); (b) For each such diagnosed disorder, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is: (1) is related to conceded herbicide agent exposure in service; (2) is proximately due to hypothyroidism, diabetes mellitus, type II, or atherosclerotic coronary disease, including any medications used to treat the same; or (3) has been aggravated by hypothyroidism, diabetes mellitus, type II, or atherosclerotic coronary disease, including any medications used to treat the same. In addressing (b)(2) and (b)(3), please render two separate opinions, and please discuss the medical treatise evidence submitted by the Veteran's attorney in August 2021. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based upon the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.