Citation Nr: 21074008 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 20-09 584 DATE: December 14, 2021 REMANDED Service connection for a heart disability, to include hypertensive heart disease, atrial fibrillation (AFib)/atrial flutter, pacemaker implant, and low pulse rate, to include as secondary to his service-connected hypertension, is remanded. REFERRED Service connection for a gallbladder disability has been raised by the Veteran in a March 2, 2020, VA Form 21-4138, Statement in Support of Claim, and March 2, 2020, VA Form 9, Substantive Appeal to the Board, each filed in connection with the claim on appeal in this case. The Veteran also submitted related medical records. The VA Regional Office recognized this correspondence as a request for an application and issued a June 3, 2020, deferred rating decision, instructing that the Veteran be sent a development letter with the VA Form 21-526ez. There is no evidence of record that the appropriate correspondence was sent. The Board does not have jurisdiction over a claim for service connection for a gallbladder disability. That claim is referred to the VA Regional Office for initial adjudication. 38 C.F.R. § 20.904(b). REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1966 until his honorable discharge in November 1971. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from an August 2018 decision by a Regional Office of the United States Department of Veterans Affairs (VA), which denied service connection for AFib/atrial flutter auricular, arrhythmia, hypertensive heart disease, high blood pressure, pacemaker implant, and low pulse rate. The Veteran filed a timely substantive appeal and did not elect to have a Board hearing. In a June 2020 decision, the Board granted service connection for hypertension as due to herbicide-agent exposure based on the Veteran's service in the Republic of Vietnam. With respect to the Veteran's remaining claims, the Board recharacterized them as a "heart disability, to include hypertensive heart disease, atrial fibrillation/atrial flutter, pacemaker implant, and low pulse rate," to provide for expanded consideration of heart conditions. The Board remanded the heart-disability claim to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain a VA examination and medical opinion addressing the etiology of the Veteran's heart conditions, which the VA Regional Office accomplished. The case now returns to the Board. Unfortunately, the Board finds that there has been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Regional Office afforded the Veteran a VA-contracted examination in March 2021 addressing his heart conditions, to include as secondary to his service-connected hypertension. The examiner offered a negative nexus opinion as to secondary service connection, explaining "there are no medical pathophysiologic relationship between the hypertension causing or leading to a heart condition since they are both anatomically and different physiological systems." The examiner did not offer any explanation to support this conclusion, which renders the opinion insufficient. The United States Court of Appeals has routinely found opinions like this one to be inadequate. See, e.g., Martin v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 616 (holding that an examiner's opinion, that "the left and right wrists are 'separate anatomical structures,' and the 'pathology in one does not result in pathology or abnormal biomechanical forces in the other," did not inform the Board "as to the question of whether the veteran's right wrist was aggravated by his left wrist disability."); Rosado-Perez v. McDonald, 2015 U.S. App. Vet. Claims LEXIS 1762 (holding that an examiner's opinion that cervical spine and knee disabilities have "different anatomical location with different biomechanical properties" to a service-connected lumbar spins disability and "different. . . pathophysiology" is not a sufficient rationale on its own). Thus, remand is required for an addendum opinion. In addition, the examiner initially offered a positive nexus opinion as to the Veteran's heart conditions based on herbicide-agent exposure. But the examiner's rational was that "agent orange . . . has been shown to be a cause and related to heart conditions." This is a conclusory statement, not a rationale. It does not explain why the Veteran's heart conditions were caused by herbicide-agent exposure. The VA Regional Office obtained an addendum opinion from the examiner in October 2021, but it too is insufficient. The examiner only discussed how ischemic heart disease has been associated with veterans who were exposed to herbicide agents in service. Yet, the examiner specifically endorsed that the Veteran's heart conditions did not qualify as ischemic heart disease. March 2021 VA-Contracted Examination, Page 2, Questions 2B. Hence, the addendum opinion and the initial opinion, appear to be contrary to the examiner's findings during the examination. At best, the examination and the medical opinions are equivocal: Do the Veteran's heart conditions qualify as ischemic heart disease or not? The Board finds the current opinions have no probative value. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). Thus, remand is required for an addendum opinion. Finally, the Veteran asserts his gallbladder issues may have caused his heart conditions. March 2, 2020, VA Form 21-4138, Statement in Support of Claim, and March 2, 2020, VA Form 9, Substantive Appeal to the Board. Thus, he raises an additional theory of secondary service connection, but he is not yet service-connected for a gallbladder disability. Until the VA Regional Office adjudicates his claim for service connection for a gallbladder disability, the Board cannot adjudicate his claim for service connection for a heart disability. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant medical records not otherwise of record in relation to his claim for service connection for a heart disability, to include hypertensive heart disease, atrial fibrillation/atrial flutter, pacemaker implant, and low pulse rate. Reasonable attempts must be made to obtain relevant private medical records. 3. Adjudicate in the first instance the Veteran's claim for service connection for a gallbladder disability. 4. If the VA Regional Office determines service connection is warranted for a gallbladder disability, it should consider whether opinions addressing secondary service connection for the Veteran's heart disability as secondary to his gallbladder disability are warranted and adjust the following directives in #5 accordingly. 5. After the foregoing directives are accomplished, obtain an addendum opinion from the March 2021/October 2021 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's heart disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding: (a.) Please identify and explain whether any of the Veteran's heart disabilities qualify as ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's identified heart disabilities had their respective onset in or are otherwise etiologically related to an in-service event, injury, or disease, to include conceded herbicide-agent exposure during the Veteran's service in the Republic of Vietnam. The examiner is informed that if the Veteran's heart disabilities do not qualify as ischemic heart disease for purposes of presumptive service connection, a grant of service connection may be made on a direct basis. (c.) For each identified heart disability, whether it is at least as likely as not (50 percent probability or more) such disability was caused by (proximately due to or as the result of) his service-connected hypertension? (d.) For each identified heart disability, whether it is at least as likely as not (a 50 percent probability or more) such disability was aggravated by his service-connected hypertension. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of each heart disability, including any evidence concerning continuity of symptomatology, as he is permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a heart disability in service or the assertion that the Veteran's service-connected hypertension led to a currently diagnosed heart disability. A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. It is not only the continuity of treatment that is relevant, but also the continuity of symptoms regardless of treatment. If the examiner determines a disability was acute rather than chronic, the examiner should explain how he or she arrived at that conclusion rather than providing a conclusory opinion. For example, what evidence led to that conclusion, what would the examiner expect to see if a condition was chronic, how do the Veteran's lay statements, if any, affect the conclusion? If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Shamil Patel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.