Citation Nr: 21013037 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-14 479 DATE: March 8, 2021 REMANDED Entitlement to service connection for post-operative lumbar fusion is remanded. Entitlement to service connection for arrhythmia, including as secondary to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1971 to September 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2017, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. The Veteran submitted a request for a copy of all the records in his claims file in a Privacy Act request dated April 20, 2020. VA responded on February 26, 2021 with a digital copy of his entire file and notified the Veteran as such that his request was now considered satisfied. On October 13, 2020, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMR) that remanded the issues of service connection post-operative lumbar fusion and cardiac arrythmia back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court’s remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated October 23, 2020, notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative did not submit any new evidence during this period. See Clark v. O’Rourke, 30 Vet. App. 92 (2018). The substance of the Court’s JMR will be discussed further in the remand section below. 1. Entitlement to service connection for post-operative lumbar fusion is remanded. 2. Entitlement to service connection for arrhythmia, including as secondary to herbicide exposure, is remanded. The Veteran filed a claim for service connection for his post-operative lumbar fusion and his arrythmia in October 2010, and was denied in a January 2012 rating decision. He asserted in statements supporting his claim that he had been exposed to herbicides in the course of his duties as a mechanic on intercontinental ballistic missiles at two different Air Force bases that he had been exposed to herbicides at his job sites. On October 13, 2020, the CAVC issued a Joint Motion for Remand which vacated the January 2018 Board decision that denied entitlement to service connection for post-operative lumbar fusion and arrythmia, and remanded to the Board for further consideration and development. No. 20-2485, 2020 U.S. App. Vet. Claims (Oct. 13, 2020) (unpublished). The Court called attention to two areas in its vacatur and remand. First, the Court noted errors in the Board’s reliance on a 2011 VA examination for the lumbar back negative decision, and noted the Veteran’s statements at his August 2017 hearing were not apparently taken into account with regard to the back pain having existed since active service and progressively worsening since then. Second, the Court considered the arrythmia issue and the Veteran’s theory that the use of herbicides at the missile silos where he worked on a regular basis were the exposure that led to his diagnosed cardiac arrythmia. The Court noted the Veteran’s testimony at the August 2017 hearing that he saw crews spraying herbicides around the missile silos. The Court also noted that an inquiry to the Joint Services Records Research Center (JSRRC) had affirmed the Veteran’s two duty assignments at issue but that VA had not taken any further steps to ascertain whether herbicide agents of any type were used at the missile silos in question as alleged by the Veteran. VA has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A (2012). This includes the duty to make “reasonable efforts to obtain relevant records (including private records)” as long as the claimant “adequately identifies” those records and authorizes VA to obtain them. 38 U.S.C. § 5103A(b)(1). See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009) (“VA is statutorily required to obtain all of the veteran’s relevant service medical records, not simply those which it can most conveniently locate.”) VA has a duty to search for records that would assist a Veteran in the development of his claim, and for which the Veteran has provided the Secretary information sufficient to locate such records, to include making as many requests as are necessary and ending only when such a search would become “futile.” In Gagne v. McDonald, the Court of Appeals for Veterans Claims (CAVC) defined futile, under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159, as “a search where it is apparent that the sought-after records are either not in existence or not in the possession of the record’s custodian.” 27 Vet. App. 397, 403 (2015). To trigger VA’s duty to assist a claimant with obtaining federal records to support a claim, a claimant need not “show that a particular record exists or that such a record would independently prove [their] claim.” Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019). The Board thus finds that remand is necessary to seek the records noted by the Court, and for any other updated records that may prove helpful in substantiating the Veteran’s claim for service connection for his post-operative lumbar fusion and/or his arrythmia. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Pursuant to the Court’s remand, contact the JSRRC and/or any pertinent U.S. Air Force service channels to ascertain whether herbicides of any kind, not just Agent Orange, but any “tactical” or commercially-available herbicides, were used around missile silos or other related work areas at Vandenburg (California) and/or Minot (North Dakota) Air Force Bases between September 1971 to September 1975, the dates of the Veteran’s active service. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. All actions to obtain the records should be documented, and if any of the records cannot be sourced, a memorandum to that effect should be provided for the claims file. 3. After the record search is complete, and any new records are added to the claims file, obtain a VA addendum opinion for each of the two issues on appeal, post-operative lumbar fusion and the cardiac arrythmia, to include as due from herbicide exposure, to address the nature and etiologies of each. An in-person examination is not required for either issue, unless the VA examiner deems it to be so necessary to resolve the appeal. The entire claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran’s entire record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s post-operative lumbar fusion and/or his cardiac arrythmia, to include as due to herbicide exposure of any type, is related to his active duty service, or are otherwise related to any in-service disease, event, or injury, to include the possibility of herbicide exposure. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, to include his testimony before the undersigned VLJ, must be specifically acknowledged and considered in formulating any opinions. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.