Citation Nr: 21005294 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-32 634 DATE: February 1, 2021 REMANDED Entitlement to service connection for a heart condition, to include as secondary to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1957 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently before the Board in May 2020, at which time the Board remanded the case to the RO so that an addendum medical opinion could be obtained. The matter now returns to the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). Entitlement to service connection for a heart condition, to include as secondary to herbicide agent exposure, is remanded. In the Board’s May 2020 remand decision, the Board instructed the RO to obtain an addendum medical opinion on the etiology of his claimed heart condition to supplement a medical opinion obtained in January 2020. To that end, the Board directed the VA examiner providing the addendum opinion to do the following: (1) identify and list all current heart conditions, such as an atrial fibrillation and hypertensive heart disease, that have been present during the pendency of the appeal; (2) for any valvular heart disease identified, opine as to whether it was at least as likely as not related to his service; (3) for any hypertensive heart disease identified, opine as to whether it was at least as likely as not related to his service, including conceded herbicide agent exposure; and (4) for any other heart disease identified, opine as to whether it was at least as likely as not related to his service, to include as due to herbicide agent exposure. The examiner was specifically instructed to consider a 2018 study by the National Academy of Science (NAS) suggesting that herbicides could be linked to hypertension, as well as the Veteran’s lay statements regarding the nature and onset of his conditions, his prior treatment records, and other VA examination reports and addenda opinions. In July 2020, the RO obtained three separate addenda opinions from a single VA examiner that addressed the Veteran’s claimed heart condition. The VA examiner failed to expressly identify and enumerate the heart conditions that had been present during the pendency of his appeal but addressed valvular heart disease and hypertensive heart disease in separate addenda opinions. With respect to hypertensive heart disease, the VA examiner began by listing the conditions that VA had determined had a positive association with exposure to herbicide agents. The VA examiner then indicated that the Veteran’s medical records revealed a diagnosis of hypertension, as well as hypertensive heart disease and supraventricular arrhythmia before citing to a prior addendum opinion from January 2020. The VA examiner then concurred with the previous addendum opinion on hypertensive heart disease, which opined that it was not possible to attribute hypertension to any one group of different risk factors without speculating and that it could not be found that the “sole cause” of hypertension was due to herbicide agent exposure. Additionally, the VA examiner cited to an article on hypertensive heart disease from StatPearl, which stated that hypertension increased the workload on the heart, which induced structural and functional changes in the myocardium, including hypertrophy of the left ventricle. The VA examiner then concluded that the claimed condition was less likely than not incurred in or caused by service. With respect to valvular heart disease, the VA examiner considered the Veteran’s complaints of a heart murmur with an irregular heartbeat in 1974, as well as medications he began taking starting in 1980. The VA examiner went on to state that a literature review had been performed regarding the parthenogenesis of valvular heart disease and atrial fibrillation, and cited an article from American Family Physician on triggers for atrial fibrillation, including coronary artery disease, myocardial infarction, myocardial ischemia, epicardial, myocardial, and endocardial diseases, heart failure, latrogenic conditions, postablation therapy, postcardiac catheterization, postcardiac device implants, postcardiac surgery, structural heart disease, atrial septal defects, dilated cardiomyopathy, Ebstein anomy, valvular disease, and ventricular hypertrophy. The examiner concluded by stating that the Veteran had a positive medical history for LVH, or left ventricular hypertrophy, and that his claimed condition was less likely than not incurred in or caused by service. With respect to other heart conditions, the examiner seems to have either misunderstood or disregarded the Board’s previous remand instructions. To that end, the VA examiner acknowledged that a “multitude of conditions” were present but did not list them and declined to offer any other opinions regarding other heart conditions. In a January 2021 Informal Hearing Presentation, the Veteran’s representative argued that the Veteran was entitled to another remand for a new medical opinion, because the July 2020 VA examiner failed to comply with the Board’s remand instructions. More specifically, the representative argued that the VA examiner did not provide a definitive opinion with respect to the etiology of his hypertensive heart disease, and that the examiner failed to address the NAS study on hypertension. As part of its duties to assist veterans who have filed claims for benefits, VA may be required to provide a medical examination or opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). If an examination report is inadequate or does not contain sufficient detail, the Board is required to return the report in a remand. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). A remand by the Board confers a right to compliance with the directives of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Here, however, the Veteran’s representative has argued that there has not been substantial compliance with the Board’s prior remand. For the reasons set forth below, the Board agrees. As such, additional remand is necessary to afford the Veteran every possible consideration. First, the VA examiner did not clearly identify and list all the heart conditions that the Veteran had been diagnosed with during the course of his appeal (i.e., since filing his claim for a heart condition in January 2016). It is irrelevant whether he has been diagnosed with multiple conditions; the VA examiner still should have enumerated them and discussed their etiology. In the interest of assembling clear and reliable findings, remand is thus necessary so that the examiner can properly list and opine as to the etiology of all heart conditions that have been diagnosed during the period on appeal, as opposed to only some of the heart conditions that have been diagnosed. Second, the Board concurs with the Veteran’s representative that the examiner did not substantially comply with the Board’s previous remand instructions when he failed to discuss the NAS study on hypertension in his hypertensive heart disease opinion. Indeed, the examiner seems to take for granted that it would not be possible to attribute a cause to his hypertension, and in turn a cause for his hypertensive heart disease, without considering the NAS study suggesting a link between hypertension and herbicide agent exposure. On remand, the examiner is reminded to explicitly address this evidence. Last, the Board finds that the VA examiner’s opinion with respect to valvular heart disease is inadequate. Indeed, although the VA examiner cited to medical literature regarding the causes of atrial fibrillations and valvular heart disease, the examiner offered a conclusory opinion when he stated that there was no nexus between his condition and service. For instance, the VA examiner did not explain why the Veteran’s 1974 complaints of a heart murmur were unrelated to his current condition. Moreover, although the examiner discussed the triggers for an atrial fibrillation, it does not appear that his opinion addressed the etiology of his valvular heart disease. As such, additional remand is warranted to obtain an opinion with a sufficiently detailed rationale. The Board recognizes that by their nature, these medical issues are very complex and may require a time consuming and possibly frustrating exercise wherein the examiner may or may not be able to provide a definitive medical opinion as to the etiology of these disabilities on appeal. The examiner is asked to remember, however, that the Board is precluded from making its own medical determinations, and hence why it relies upon medical examiners for the opinions they provide. In addition, they are reminded of the relaxed evidentiary standard that is properly imposed on VA when it considers the application of the benefit-of-the-doubt doctrine a Veteran’s application for benefits. Accordingly, this matter is REMANDED for the following action: (This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). Expedited handling is requested.) Obtain an addendum medical opinion by a qualified VA professional. If additional VA examination is necessary, a new VA examination to determine the nature and etiology of the Veteran’s condition must be obtained instead. The Veteran’s claims file and a copy of this remand should be furnished to the examiner, who should indicate that he or she has reviewed the claims file. The examiner is then asked to do the following: (a.) Identify and list all current heart conditions, such as atrial fibrillation, hypertensive heart disease, and valvular heart disease, that were present at the time the claim was filed or have been present at any point during the pendency of this appeal (i.e., since the claim was filed in January 2016). (b.) For any valvular heart disease that is identified, opine as to whether it at least as likely as not (50 percent or greater probability) had its onset during or is otherwise related to service. The examiner must specifically address the 2017 reports of abnormal valvular findings. (c.) For any hypertensive heart disease that is identified, opine as to whether it at least as likely as not (50 percent or greater probability) the disability had its onset during or is otherwise related to service, to include as a result of conceded herbicide agent exposure. The examiner must specifically address the March 2008 diagnosis of hypertensive heart disease. The examiner is also informed that an opinion based on the fact that a claimed disease is not on VA’s list of recognized diseases associated with herbicide agent exposure will be deemed inadequate. In this regard, the examiner must specifically address the 2018 study provided by the National Academy of Sciences finding that “[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension.” See National Academy of Science, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018). (d.) For any other identified disability, opine as to whether it is at least as likely as not (50 percent or greater probability) that the disability had its onset during or is otherwise related to service, to include as a result of conceded herbicide agent exposure. The examiner is reminded that an opinion based on the fact that a claimed disease is not on VA’s list of recognized diseases associated with herbicide agent exposure will be deemed inadequate. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is reminded to consider the Veteran’s lay statements regarding the nature and onset of his condition(s), as well as July 1958 service treatment records documenting a Grade II aortic systolic murmur, a June 1973 chest x-ray depicting an enlarged heart, and post-service medical records from Kaiser Permanente. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. More specifically, the examiner must explain whether the inability to provide a more definitive opinion is due to a need for additional information, the examiner’s lack of personal knowledge or training, or the limits of current medical knowledge. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.