Citation Nr: 21071773 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-14 645 DATE: December 1, 2021 REMAND Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1960 to August 1964 and June 1965 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran alleges that his heart disability is related to herbicide exposure while in Vietnam and that both his tinnitus and headache disabilities are secondary to his heart; he alleges TDIU is a result of these conditions, as well as his other service-connected disabilities. See Oct. 17, 2018, Correspondence; Dec. 13, 2016, VA Form 21-526EZ. In a February 2020 Decision, the Board, among other things, denied the heart, headache, and tinnitus issues. It also remanded an unrelated claim of entitlement to service connection for hypertension and, because of that, remanded TDIU as inextricably intertwined. The Veteran appealed those denials to the United States Court of Appeals for Veterans Claims (CAVC). The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of an August 25, 2020, Joint Motion for Partial Remand (JMPR). The Parties agreed that the Board made several errors when previously adjudicating these issues. As to the heart issue alone, there were three identified mistakes. First, the Parties agreed that the Board failed to consider whether the Veteran was entitled to service connection for ischemic heart disease (IHD). The May 2019 Statement of the Case listed the issue as entitlement to service connection for brachycardia (claimed as IHD), but the Board adjudicated the issue solely as brachycardia. Second, a July 2016 VA examiner noted that he would need two stresses tests that the Veteran noted he underwent in June 2016; the examiner noted that the results of these tests would be relevant to determining whether the Veteran has IHD. The Board erred in not ensuring that these test results were available to the examiner. Third and finally, the Board erred when it failed to address whether the Veteran's heart disability directly was related to service. To that end, Counsel's January 2020 Brief cited in footnote four an article purporting to link Agent Orange and brachycardia, but the Board did not discuss this article in its findings or discuss why no addendum opinion was needed to address the article. The tinnitus and headache claims, because the Veteran argued that these conditions are secondary to his heart disability, needed to be readjudicated as inextricably intertwined issues. By an August 31, 2020, Order, the CAVC adopted the Parties' JMPR and vacated the Board's February 2020 Decision with respect to these issues, remanding them back for appellate consideration. In a November 2020 Decision, the Board noted that the issue of TDIU had been recertified to the Board but was deferring adjudication as an inextricably intertwined claim until the remaining issues were decided. In a January 2021 Decision, the Board remanded all these claims. It required the agency of original jurisdiction (AOJ) to engage in substantial development. As far as record development, the AOJ was to (1) obtain all outstanding records from the Social Security Administration; (2) obtain all outstanding VA medical center (VMAC) records; (3) contact the Veteran and ask him whether the April 2016 Lexiscan Stress Test from Advanced Heart Care Group and the May 2016 Stress Test from St. Elizabeth Hospital are the stress tests he mentioned to the July 2016 VA examiner; if they were not, it was to assist the Veteran in obtaining those tests; and (4) obtain all outstanding private treatment records from the Joslin Diabetes Center and Dr. Steven Taylor. After that record development was completed, the Veteran was to be scheduled for an examination of his heart disabilities. The examiner was to provide a diagnosis of all heart disabilities; if the Veteran did not have a diagnosis of IHD, the examiner was to explain why not. The examiner then was asked whether any of the conditions were related to service, to include exposure to herbicides, or whether any disability occurred within one year after separation form service. In providing these opinions, the examiner was to consider the 2016 stress tests, as well as any others obtained, and the examiner was instructed that any negative opinion cannot rely on the fact that a certain heart disability presumptively is not related to Agent Orange. If, and only if, a heart disability was deemed related to service was the examiner to provide secondary etiological opinions regarding the headache and tinnitus issues. In February 2021, SSA notified the Board that the Veteran's records have been destroyed. A February 19, 2021, Report of Contact sheet verifies the AOJ's efforts to obtain medical records from Dr. Taylor. On January 15, 2021, the AOJ successfully faxed the necessary request for records. By January 23rd, no records had been received, and a second request successfully was faxed. On January 28th, a VA representative spoke with an individual from the medical records department, who confirmed receipt of the fax and advised VA of a onetwo-week turnaround. A February 22, 2021, Report of Contact sheet verifies the AOJ's efforts to obtain medical records from the Joslin Diabetes Center. On January 15, 2021, the AOJ successfully faxed the necessary request for records and left a message asking to be called back once the department received the request. The AOJ again called on January 22nd but was unable to leave a message; a second request successfully was faxed the next day. By February 2nd, no records had been received, and a third request successfully was faxed. On February 22nd, the VA employee performed additional research and was able to speak with a live representative. The Veteran was provided with a new fax number and sent a request that day; the VA employee was notified of a tenfifteen-day turnaround. The Veteran was notified in a February 23, 2021, letter that, to date, the AOJ was unsuccessful in obtaining either set of records. A March 4, 2021, Report of Contact sheet verifies that the AOJ was closing out the request for the Joslin records as a "non-response." In a March 25, 2021, letter to the Veteran, the AOJ notified the Veteran that Joslin charges a fee for medical records. Therefore, because VA is not authorized to pay such fees for procurement of records, it would cease efforts to obtain them. On March 5th, the Veteran was supplied with additional forms to identify any other private treatment records that may be outstanding. He identified none and did not submit those forms back to the AOJ. On March 24, 2015, a VA representative contacted the Veteran to resolve the ambiguity concerning the 2016 stress tests. The Veteran ultimately admitted that he was unsure if the stress tests he mentioned to the July 2016 VA examiner were the 2016 Lexiscan Stress Test from Advanced Heart Care Group and the May 2016 Stress Test from St. Elizabeth Hospital. The representative also called the Veteran's representative, who likewise could not confirm such information. In early March 2021, additional VAMC records were uploaded to the claims file. When there exists a remand, from either the United States Court of Appeals for Veterans Claims (CAVC) or the Board, a veteran is entitled to substantial compliance with those remand directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the record development, the Board finds that the AOJ substantially has complied with the Board's prior directives and satisfied its duty to assist. SSA notified the AOJ that the Veteran's records since have been destroyed, so there are no further efforts to be expended there. See 38 C.F.R. § 3.159(c)(2), (3). Additional VAMC records were uploaded per the Board's instructions. The AOJ made attempts to verify the ambiguity concerning the stress tests mentioned to the July 2016 examiner, but neither the Veteran nor Counsel could clear up that ambiguity, and no additional submissions for private records have been received. Lastly, the Board finds that the AOJ's efforts concerning the records from Joslin and Dr. Taylor were reasonable. Reasonable efforts under 38 C.F.R. § 3.159(c) generally consists of "an initial request for the records and, if the records are not received, at least one followup request." McKinney v. McDonald, 28 Vet. App. 15, 35 (2016). For the Dr. Taylor records, VA sent two fax requests and personally spoke with a medical records representative, who informed the AOJ of a specific turnaround for those records. That the AOJ never received those records is not because of its own inaction. It wholly revolves around a third party's efforts. As to the Joslin records, the AOJ, after extensive efforts, was informed that a fee was required. Thus, the Board find's that the AOJ's actions were reasonable and that it need not expend further resources trying to obtain these records. See ibid. While the Veteran was notified of the AOJ's inability to obtain both sets of records, only the March 25, 2021, letter concerning the Joslin records comports with the requirements of 38 C.F.R. § 3.159(e). Thus, on remand, the AOJ should send to the Veteran a letter comporting with that regulation for the Dr. Taylor records. 1. Entitlement to service connection for a heart disability is remanded. The AOJ obtained in August 2021 medical opinions concerning the Veteran's heart disabilities. Because they are inadequate, the Veteran has been divested of substantial compliance, requiring another remand. The August 2021 examiner noted diagnoses of supraventricular arrhythmia, valvular heart disease, and implanted cardiac pacemaker. Her etiological opinion stated the following: I evaluated the [V]eteran and reviewed the records. 1. There is a current diagnosis as noted of brachycardia and pacemaker. 2. There is an event of that happened in the military of Agent Orange exposure as noted in evidence. 3. There is not a connection between the event and the present in that the diagnosis was not contributed to by the toxin exposure. Cardiac presumptive diagnosis is ischemic heart disease. 4. THE CLAIMED CONDITION WAS LESS LIKELY THAN NOT (less than 50 percent probability) INCURRED IN OR CAUSED BY THE CLAIMED IN-SERVICE INJURY, EVENT, OR ILLNESS. As to whether the Veteran had a heart disability within one year after separation from service, the examiner stated: I evaluated the [V]eteran and reviewed the records. 1. There is a current diagnosis as noted of brachycardia and pacemaker diagnosed in 2014. 2. There is not an event of that happened in the military with symptoms and diagnosis after one year of military discharge. 3. There is not a connection between service and his current condition 4. THE CLAIMED CONDITION WAS LESS LIKELY THAN NOT (less than 50 percent probability) INCURRED IN OR CAUSED BY THE CLAIMED IN-SERVICE INJURY, EVENT, OR ILLNESS. There are multiple reasons why these opinions are inadequate. First, it ignores the Board's instruction that the examiner was to explain why the Veteran does not have a diagnosis of IHD if no such diagnosis was rendered. Second, the Board specifically stated that the opinion as to whether the Veteran's heart disabilities directly were related to service could not be premised upon the fact that any such disability does not qualify for presumptive service connection under the regulations; however, that exactly is the opinion that the examiner gave. She stated that there "is not a connection between the event and the present in that the diagnosis was not contributed to by the toxin exposure. Cardiac presumptive diagnosis is ischemic heart disease." (Emphasis added). Her opinion solely is premised on the fact that IHD is the only cardiac disability presumptively tied to Agent Orange exposure. Third, the Board again erred by not instructing the examiner to consider and reference the article that the Parties agreed needed discussion: Symptoms in Vietnam Veterans Exposed to Agent Orange found in the Journal of the American Medical Association (1979) by Dr. Gilbert Bogen. Thus, in order to correct these defects and afford the Veteran substantial compliance with the JMPR and the Board's prior directives, remand is required. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for a headache disability and tinnitus and entitlement to TDIU are remanded. Because the Board must remand adjudication of the heart issue, the issues of the Veteran's headache and tinnitus disabilities, as alleged secondary to a heart disability, also require remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Because the Veteran alleges TDIU as due to these conditions, it also is inextricably tied to their resolution and similarly must be remanded. See ibid. The matters are REMANDED for the following action: 1. Send to the Veteran a letter complying with 38 C.F.R. § 3.159(e), informing him of the unavailability of the records from Dr. Taylor. 2. Ask the Veteran and his representative to submit a copy of the cited medical literature: Symptoms in Vietnam Veterans Exposed to Agent Orange found in the Journal of the American Medical Association (1979) by Dr. Gilbert Bogen. 3. Obtain an addendum to the August 2021 medical opinion. The addendum shall answer the following: (a.) Does the Veteran have a diagnosis of ischemic heart diseases? If not, provide a through rationale detailing why not. (b.) For all of the heart diagnoses listed in the August 2021 VA heart examination, is it at least as likely as not (a fifty percent probability or greater) that any disability occurred in, or is the result of, the Veteran's period of active duty service, to include exposure to herbicides? Any negative opinion may not be premised on the fact that any such heart disability does not have a presumptive connection to herbicide exposure under VA law. (c.) For all of the heart diagnoses listed in the August 2021 VA heart examination, is it at least as likely as not (a fifty percent probability or greater) that any disability occurred within at least one year after separation from active duty service? (d.) In answering these questions, the examiner must also reference and discuss the Veteran's cited medical literature: Symptoms in Vietnam Veterans Exposed to Agent Orange found in the Journal of the American Medical Association (1979) by Dr. Gilbert Bogen. If this article is not contained within the Veteran's claims file and the examiner cannot locate the article with independent research, then the examiner should indicate as such. (e.) In answering these questions, the examiner must also reference and discuss the Veteran's previous stress tests contained with the Veteran's claims file. 4. If, and only if, the examiner answers either of the above questions in the affirmative, then obtain a medical opinion for the Veteran's headache and tinnitus claims. The opinions shall answer the following: (a.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's service-connected heart disability (i) proximately caused or (ii) aggravated beyond natural progression his headache disability? (b.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's service-connected heart disability (i) proximately caused or (ii) aggravated beyond natural progression his tinnitus? Note: The examiner 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. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 5. Conduct any other development deemed necessary and then readjudicate the Veteran's claims. Tracie N. Wesner Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.