Citation Nr: 21005708 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-31 490A DATE: February 2, 2021 REMANDED The claim of entitlement to service connection for a heart condition, to include as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from January 1966 to January 1969. Among other commendations, the Veteran was awarded the Vietnam Service Medal. This matter is before the Board of Veteran’s Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico that denied service connection for ischemic heart disease (IHD) claimed as a heart condition with pacemaker, to include as due to exposure to herbicide agents. The Board notes that the Veteran in his initial claim filed for service connection for a heart condition with pacemaker and noted that the condition was due to exposure to herbicide agents, such as Agent Orange. The Board confirms that in the Veteran’s Statement of the Case (SOC) issued May 2014 and in a Memorandum issued May 2020 that the Veteran’s exposure to herbicides was conceded based on the Veteran’s active duty service in the Republic of Vietnam. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Therefore, in consideration of the holdings in Brokowski and Clemons, the Board has recharacterized the Veteran's claim for service connection for IHD to service connection for a heart condition to include as due to exposure to herbicide agents. Entitlement to service connection for a heart condition, to include as due to exposure to herbicide agents The Veteran contends that he is entitled to service connection for a heart condition, to include as due to exposure to herbicide agents. The Veteran received a VA examination for IHD in October 2011. The examiner noted no diagnosis of IHD, no finding of myocardial infarction, no coronary bypass surgery, no heart transplant, but the Veteran was noted as having a pacemaker but not due to IHD. The Veteran was found not to have congestive heart failure. The Veteran indicated that he needed a pacemaker due to symptomatic bradycardia and not due to IHD. The Veteran’s private and VA treatment records indicated diagnoses of hypertension (HTN), aortic sclerosis, sick sinus syndrome, and unstable angina. The Veteran’s pacemaker was also indicated. The Board finds that the VA examination and the Veteran’s medical treatment records are competent, credible, and with significant probative weight. At the time of the Veteran’s October 2011 VA examination, the current findings from National Academy of Sciences (NAS) Institute of Medicine (IOM) concluded that there was "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension. See Institute of Medicine of the National Academies, Veterans and Agent Orange: Update 2010 694 (2011). Since then, however, NAS has determined that there was "sufficient evidence of an association" between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War, indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See Institute of Medicine of the National Academy of Sciences, Veterans and Agent Orange: Update 2018, available at http://nationalacademies.org/hmd/reports/2018/veterans-and-agent-orange-update-2018.aspx. As this study has indicated a more substantial relationship between exposure to herbicide agents and hypertension than the previous IOM update the October 2011 VA examination did not address this nor was a HTN VA examination provided to address this shift nor consider its applicability to this Veteran’s case or claim for service connection for a heart condition. The Board finds that the expanding of the Veteran’s claim to service connection for a heart condition with the additional diagnoses, the Veteran’s conceded exposure to herbicide agents, and the NAS Update entitles the Veteran to a remand. Upon remand the Veteran is entitled to VA examinations that address his diagnosed heart conditions and pacemaker to include as due to exposure to herbicide agents. This matter is REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. The Veteran should be scheduled for a VA examination, (a telehealth examination is also an option) to address his claims for a service connection for heart conditions to include as due to exposure to herbicide agents. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing all indicated tests and studies, the examiner should address the following: (a.) Identify any and all heart disabilities that the Veteran currently suffers from. (b.) For each identified heart disability, opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service, or due to exposure to herbicide agents. The Board notes that the Veteran’s exposure to herbicide agents has already been conceded and is not at issue. In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 3. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, 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.