Citation Nr: 21005835 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-44 349 DATE: February 2, 2021 REMANDED Entitlement to service connection for a heart disability other than ischemic heart disease, to include as due to herbicide exposure, is remanded. Entitlement to service connection for a stroke disability with residuals, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to December 1969, including service in the Republic of Vietnam from August 1967 to August 1968. This case initially reached the Board of Veterans’ Appeals (Board) from a rating decision issued by the Agency of Original Jurisdiction (AOJ) in November 2012. In February 2016, following the Veteran’s death on January 27, 2016, the Veteran’s spouse was found to be the appropriate substitute to continue the Veteran’s appeal. In January 2019, the Board denied service connection for ischemic heart disease, for a heart disability other than ischemic heart disease, and for stroke and its residuals. The Appellant appealed the Board’s denials and, after further proceedings before the United States Court of Appeals for Veterans Claims (Court), the parties filed two motions: (1) a joint motion for partial remand (JMPR); and (2) a joint motion to terminate the appeal in part. In their second joint motion, the parties agreed to terminate the portion of the appeal concerning the claim for service connection for ischemic heart disease according to the terms of a Stipulated Agreement granting service connection for ischemic heart disease. In the JMPR, the parties agreed that the Court should vacate the January 2019 Board decision denying service connection for a heart disability other than ischemic heart disease and for stroke and its residuals. In December 2019, the Court issued an order granting both motions. According to the order, “the appeal is terminated as to the matter denying service connection for ischemic heart disease.” The Court further ordered that the “matters identified in the JMPR [- i.e., other heart disability and stroke claims] are remanded… for action consistent with the terms of the joint motion.” In May 2020, the Board remanded all three claims to the AOJ with instructions to obtain new medical opinions on the nature and etiology of all three claimed disabilities. Subsequently, a January 2021 Board decision vacated the May 2020 Board decision with respect to the issue of service connection for ischemic heart disease, given the parties’ stipulations at the Court. The appeal with respect to the remaining claims for service connection for a heart disability other than ischemic heart disease, to include as due to herbicide exposure, and for a stroke disability with residuals, to include as secondary to a service-connected disability, remains pending and within the jurisdiction of the Board. These issues have been returned to the Board and are discussed below. The Board further notes that the parties agreed in the JMPR that the Appellant must be afforded an opportunity to testify at a Board hearing. In compliance with this portion of the JMPR, the Appellant was sent a letter in March 2020 regarding the option of having a hearing. See March 2020 Board Hearing Clarification Letter. The Appellant subsequently withdrew the hearing request. See April 2020 Correspondence. There are no additional requests for a hearing of record. As such, the Board considers the request for a hearing satisfied. 1. Entitlement to service connection for a heart disability other than ischemic heart disease, to include as due to herbicide exposure, is remanded. 2. Entitlement to service connection for a stroke disability with residuals, to include as secondary to a service-connected disability, is remanded. While the Board sincerely regrets the delay, a remand is required again in this case to ensure that the Appellant is given every consideration. The medical opinions of record obtained after the Board’s prior remand are based on an underlying premise that the Veteran did not have ischemic heart disease. However, for the purposes of this adjudication, the VA has stipulated that ischemic heart disease was present, and that service-connection was warranted for such disability. It is unclear to the Board whether this understanding of the facts had a significant bearing on the conclusions reached with respect to the etiologies of the Veteran’s other heart disabilities and stroke residuals. On remand, addendum opinions should be requested. The matters are REMANDED for the following action: 1. Obtain new medical opinions addressing the nature and etiology of the Veteran’s non-ischemic heart disabilities and stroke disability with residuals. Access to the electronic claims file, including a copy of this remand, must be made available for the examiner to review. Based upon a review of the entirety of the claims file, the examiner is requested to read and provide an opinion as to the following questions, as appropriate: (a) Please initially note that VA has already stipulated that ischemic heart disease exists, and such should be considered a service-connected disability. For the responses below, please assume as true that part of the Veteran’s disability picture included service-connected ischemic heart disease. (b) Please identify all non-ischemic heart disabilities that were present before the Veteran passed away. For each non-ischemic heart disability, is it at least as likely as not (i.e. a 50 percent chance or greater) that the disability had its onset in or is otherwise related to the Veteran’s period of service, to specifically include as due to exposure to herbicides? (c) Is it at least as likely as not (i.e. a 50 percent chance or greater) that the Veteran’s stroke disability and its residuals had its onset in or is otherwise related to the Veteran’s period of service, to specifically include as due to exposure to herbicides? (d) Notwithstanding the answer to the question above, is at least as likely as not (i.e. a 50 percent chance or greater) that the Veteran’s stroke disability and its residuals were caused or aggravated by either ischemic heart disease (service-connected) and/or non-ischemic heart disease? A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. (Continued on Next Page) 2. Thereafter, readjudicate the issues on appeal. If the benefits sought are not granted, issue the Appellant and her representative a supplemental statement of the case (SSOC). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.