Citation Nr: 21012405 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 19-35 630 DATE: March 4, 2021 ORDER Service connection for a respiratory disability, to include asthma and chronic obstructive pulmonary disease (COPD), is granted. REMANDED Entitlement to service connection for a heart disability, to include atrial fibrillation, non-ischemic cardiomyopathy, and supraventricular arrhythmia, is remanded. FINDING OF FACT The competent and probative evidence shows that the Veteran’s respiratory disability, to include asthma and COPD, is at least as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include asthma and COPD, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to May 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board observes that the Veteran requested a videoconference hearing before the Board in a November 2019 VA Form 9. However, he withdrew his request for a hearing. See 1/5/2021 VA Form 21-4138. As such, the request for a hearing has been withdrawn. See 38 C.F.R. § 20.704(e) (2020). Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).   When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5758 (1990). Service connection for a respiratory disability, to include asthma and COPD. The Veteran contends service connection for a respiratory disability, to include as due to exposure to agent orange. See 7/29/2019 VA Form 21-526EZ. At the outset, the Board observes that the Veteran was diagnosed with asthma and COPD. See 2/4/2019 Medical Treatment Record – Non-Government Facility, at page 5; see also 1/14/2019 C&P Examination. As such, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection. As to the second element of service connection, the evidence of record reflects that the Veteran had active service in the Republic of Vietnam during the applicable period, thus it is presumed that he was exposed to herbicide agents during active service. See 11/15/2018 Military Personnel Record, at page 13. Thus, the second element of service connection is also met. The question before the Board therefore becomes whether there is a so-called “nexus” between the Veteran’s respiratory disability, to include asthma and COPD, and service. The Veteran provided a positive nexus opinion from C.E.T., M.D. The physician stated that the Veteran’s family history was silent for any current respiratory disease and he did not smoke; therefore, the Veteran’s respiratory disability was caused by environmental factors. The physician concluded that the Veteran’s respiratory disability was caused by exposure to herbicide agents during active duty in Vietnam. Further, the opinion includes a medical article about mortality patterns of Veterans who were exposed to herbicide agents in Vietnam. However, the physician did not discuss relevant information in the attached medical article. See 11/20/2018 Medical Treatment Record – Non-Government Facility. The Board finds this opinion to have some probative value. During a VA examination in January 2019, the examiner provided a negative nexus opinion. The examiner mentioned the positive nexus opinion and the medical article but seemed to contradict himself. The examiner provided a negative opinion but then stated that COPD is found in higher prevalence among Vietnam Veterans. Finally, the examiner stated that VA had not established herbicide exposure for the Veteran. See 1/14/2019 C&P Examination; see also 1/17/2019 C&P Examination. Additionally, the Veteran’s representative argued that the examiner’s rationale is contradictory. See 11/13/2019 VA Form 21-4138. The Board finds this opinion to have some probative value and little weight. When resolving reasonable doubt in favor of the Veteran, and after review of the competent and probative evidence, the Board finds that service connection for a respiratory disability, to include asthma and COPD, is warranted. 38 C.F.R. § 3.102. There is a positive medical statement that links the Veteran’s respiratory disability to his time in active service and it has probative value and a rationale adding to its weight. As such, the Board finds that service connection for a respiratory disability, to include asthma and COPD, is warranted. 38 C.F.R. § 3.303. REASONS FOR REMAND Entitlement to service connection for a heart disability, to include atrial fibrillation, non-ischemic cardiomyopathy, and supraventricular arrhythmia. The Veteran contends service connection for a heart disability, to include as due to exposure to agent orange. See 7/29/2019 VA Form 21-526EZ. After review of the record, a remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The record showed that the Veteran was diagnosed with atrial fibrillation, non-ischemic cardiomyopathy, and supraventricular arrhythmia. See 2/4/2019 Medical Treatment Record – Non-Government Facility, at page 5; see also 1/14/2019 C&P Examination. During a January 2019 VA examination, the examiner diagnosed the Veteran with supraventricular arrhythmia. At the conclusion of the examination and record review, the examiner opined that the Veteran’s heart disability was less likely than not related to an in-service injury, event, or disease. As rationale, the examiner reported the lack of medical diagnosis or treatment for a heart disability during service and within a year after separation from service. See 1/14/2019 C&P Examination. The Board finds this opinion inadequate. The examiner relied on a lack of an in-service diagnosis and did not cite to specific medical evidence of record or medical history of this Veteran to justify the conclusion. Therefore, the Board finds that an addendum opinion is required to correct a pre-decisional duty to assist error to determine if the Veteran’s heart disability was caused by service. This matter is REMANDED for the following actions: 1. Update any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completion of step #1, return the claims file to the examiner who conducted the January 2019 cardiovascular examination and authored the opinion. A copy of this remand request should also be provided.   After a review of the claims file, the examiner must address: (a.) Compile a list of all heart disabilities. (b.) For each disability identified on the current examination, to include atrial fibrillation, non-ischemic cardiomyopathy, and supraventricular arrhythmia, state whether it is at least likely as not (probability of 50 percent or more) that the Veteran’s current heart disabilities manifested during or are otherwise related to the Veteran’s period of active service. **The examiner must address the Veteran’s contentions that his heart disabilities are due to exposure to herbicide agents. The examiner is asked to provide specific evidence of record to support his conclusions, such as references from this Veteran’s relevant medical history and/or medical literature.** If the January 2019 examiner is no longer available, then the claims file, to include the January 2019 examination report and opinion should be forwarded to another examiner of at least equal qualifications to obtain the requested opinion. A new physical examination is not required unless deemed necessary by the clinician. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.