Citation Nr: 21006249 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-01 607 DATE: February 3, 2021 REMANDED Entitlement to service connection, to include on a secondary basis, for cardiomyopathy, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1963 to May 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had hearings before the undersigned in November 2018 and December 2020 and the transcripts are of record. In March 2019, the Board remanded the current issue on appeal, as well as additional issues of entitlement to service connection for neuropathy of the bilateral upper and lower extremities and bilateral hearing loss, for additional development. While on remand, the RO granted service connection for neuropathy of the bilateral upper and lower extremities and bilateral hearing loss in a July 2020 rating decision. As this constitutes a full grant of the benefits sought, the issues of neuropathy and bilateral hearing loss are no longer on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The claims file has been returned as related to the remaining issue of entitlement to service connection for cardiomyopathy to the Board for adjudication. The Board notes the Veteran’s representative had requested a copy of the Veteran’s claims file in November 2020. By letter dated November 17, 2020, the request was denied under FOIA. The letter informed the Veteran that the request would be processed under the Privacy Act. It does not appear that this request has been satisfied; however, as the Board is remanding the sole issue herein, there is no prejudice to the Veteran in proceeding while the request is pending. Entitlement to service connection, to include on a secondary basis, for cardiomyopathy, to include as due to herbicide exposure, is remanded. A review of the record shows that the Veteran has contended that his diagnosed cardiomyopathy is secondary to his service-connected diabetes mellitus, type II. See April 2015 Statement in Support of Claim. A July 2013 VA diabetes mellitus examination also listed the Veteran’s heart condition as a possible secondary condition of his diabetes mellitus, type II, but did not provide any additional remarks as to this finding. See July 2013 C&P Exam. An opinion expressed in such equivocal terms is insufficient. See Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to “may or may not” is an insufficient basis for awarding service connection). Nevertheless, considering a VA opinion has not been obtained that addresses secondary service connection, a remand is necessary to obtain such an opinion. The Board also notes that a VA etiological opinion has been obtained in January 2020 as related to the Veteran’s alternative assertions that his heart condition is related to his active military service, to include as due to conceded herbicide exposure. However, the Board notes that in its March 2019 remand directives, it had requested the subsequent VA opinion to address the insufficient November 2018 private medical opinions by Dr. Rosen and Dr. Thomas that related the Veteran’s heart condition to his military service and herbicide exposure. See March 2019 Remand BVA or CAVC; see November 2, 2018 Medical Treatment Record – Non-Government Facility and November 19, 2018 Medical Treatment Record – Government Facility. The January 2020 VA opinion does not do so and instead provides a conclusory opinion with an insufficient rationale. See January 2020 C&P Exam; Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand “confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders”). Thus, a remand is warranted to obtain an adequate VA opinion. The matter is REMANDED for the following action: Send the Veteran’s claims file to an appropriate medical professional to obtain an addendum to the January 2020 opinion regarding the nature and etiology of his cardiomyopathy. A complete rationale for any opinion expressed should be provided. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided, and whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. The examiner should provide a medical opinion to address the following: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran’s cardiomyopathy is related to his active service, including his presumed herbicide exposure? The VA examiner is asked to address the private medical opinions received in November 2018, by Drs. Rosen and Thomas, which state that although there are statistically more common causes for the Veteran’s cardiomyopathy, such as heredity or heart attack, these causes are not indicated or apparent. Therefore, although more rare, his exposure to a toxin like Agent Orange is a reasonable possibility. (b) Is it at least as likely as not that the Veteran’s cardiomyopathy is (i) caused or (ii) aggravated by his service-connected diabetes mellitus, type II? S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.