Citation Nr: 21023629 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 11-21 268A DATE: April 21, 2021 ORDER The Board's March 25, 2021, decision that dismissed the Veteran's claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is vacated. The Board's March 25, 2021, decision that dismissed the Veteran's claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for asbestosis is vacated. The Board's March 25, 2021, decision that dismissed the Veteran's claim for service connection for an adjustment disorder is vacated. The Board's March 25, 2021, decision that dismissed the Veteran's claim for service connection for hypertension is vacated. The Board's March 25, 2021, decision that dismissed the Veteran's claim for a bilateral eye disorder, to include cataracts, arcus senilis, pinguecula, and refractive error (claimed as blurred vision), is vacated. The Board's March 25, 2021, decision that dismissed the Veteran's claim for coronary artery disease (claimed as heart disorder) is vacated. The Board's March 25, 2021, decision that dismissed the Veteran's claim of dizziness is vacated. REMANDED Entitlement to service connection for a bilateral eye disorder, to include cataracts, arcus senilis, pinguecula, and refractive error (claimed as blurred vision), is remanded. Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for dizziness is remanded. FINDINGS OF FACT 1. In a March 25, 2021 decision, the Board dismissed the Veteran's claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD due to death based on an erroneous report of his death. 2. In a March 25, 2021 decision, the Board dismissed the Veteran's claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for asbestosis due to death based on an erroneous report of his death. 3. In a March 25, 2021 decision, the Board dismissed the Veteran's claim for service connection for an adjustment disorder due to death based on an erroneous report of his death. 4. In a March 25, 2021 decision, the Board dismissed the Veteran's claim for service connection for hypertension due to death based on an erroneous report of his death. 5. In a March 25, 2021 decision, the Board dismissed the Veteran's claim for service connection for a bilateral eye disorder, to include cataracts, arcus senilis, pinguecula, and refractive error (claimed as blurred vision), due to death based on an erroneous report of his death. 6. In a March 25, 2021 decision, the Board dismissed the Veteran's claim for service connection for coronary artery disease (claimed as heart disorder), due to death based on an erroneous report of his death. 7. In a March 25, 2021 decision, the Board dismissed the Veteran's claim for service connection for dizziness, due to death based on an erroneous report of his death. CONCLUSIONS OF LAW 1. The Board's dismissal of the Veteran's claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD due to death based on an erroneous report of his death denied him due process of law and warrants vacatur of the Board's March 25, 2021, decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. The Board's dismissal of the Veteran's claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for asbestosis due to death based on an erroneous report of his death denied him due process of law and warrants vacatur of the Board's March 25, 2021, decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 3. The Board's dismissal of the Veteran's claim for service connection for an adjustment disorder due to death based on an erroneous report of his death denied him due process of law and warrants vacatur of the Board's March 25, 2021, decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 4. The Board's dismissal of the Veteran's claim for service connection for hypertension due to death based on an erroneous report of his death denied him due process of law and warrants vacatur of the Board's March 25, 2021, decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 5. The Board's dismissal of the Veteran's claim for service connection for a bilateral eye disorder, to include cataracts, arcus senilis, pinguecula, and refractive error (claimed as blurred vision), due to death based on an erroneous report of his death denied him due process of law and warrants vacatur of the Board's March 25, 2021, decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 6. The Board's dismissal of the Veteran's claim for service connection for coronary artery disease (claimed as heart disorder), due to death based on an erroneous report of his death denied him due process of law and warrants vacatur of the Board's March 25, 2021, decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 7. The Board's dismissal of the Veteran's claim for service connection for dizziness, due to death based on an erroneous report of his death denied him due process of law and warrants vacatur of the Board's March 25, 2021, decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1970 to April 1972. These issues are on appeal from December 2009 and March 2011 rating decisions. In October 2014, the Veteran testified before the undersigned at a Board of Veterans’ Appeals (Board) hearing on the issues of entitlement to service connection for hypertension, heart disorder, eyes, and dizziness. In March 2015, the Board reopened the previously denied claim of entitlement to service connection for hypertension, and remanded all of the issues currently on appeal for further development. In August 2018, the Board denied the claims for service connection for hypertension and dizziness. The Veteran appealed the denials to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2019 Memorandum Decision, the Court vacated the August 2018 Board decision as to the issues of entitlement to service connection for hypertension and dizziness and remanded the issues to the Board for readjudication. In August 2018 and September 2019, the Board remanded the claims for service connection for the eyes and heart disorder for further development. In May 2020, the Board remanded the claims for service connection for hypertension and dizziness for further development. 1. The Board's March 25, 2021, decision that dismissed the Veteran's claim for service connection for hypertension. 2. The Board's March 25, 2021, decision that dismissed the Veteran's claim for a bilateral eye disorder, to include cataracts, arcus senilis, pinguecula, and refractive error (claimed as blurred vision). 3. The Board's March 25, 2021, decision that dismissed the Veteran's claim for coronary artery disease (claimed as heart disorder). 4. The Board's March 25, 2021, decision that dismissed the Veteran's claim of dizziness. 5. The Board's March 25, 2021, decision that dismissed the Veteran's claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 6. The Board's March 25, 2021, decision that dismissed the Veteran's claim for service connection for an adjustment disorder. 7. The Board's March 25, 2021, decision that dismissed the Veteran's claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for asbestosis. In February 2021, the Board was notified that the Veteran had died. On March 25, 2021, the Board dismissed the Veteran's claims for service connection for hypertension, dizziness, heart disorder, bilateral eye disorder, adjustment disorder, as well as the claims to reopen the previously denied claims for service connection for PTSD and asbestosis. Subsequent investigation revealed that the notification of death was erroneous. The Board sincerely apologizes to the Veteran for this error and the inconvenience that this may have caused the Veteran. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law. 38 C.F.R. § 20.1100(a). As the Board's erroneous dismissal of the Veteran's claims denied him due process of law, the Board, on its own motion, vacates its March 25, 2021, decision and issues the remand below on the claims for service connection for the eyes, heart disorder, hypertension, and dizziness in its stead. The issues of whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD, service connection for an adjustment disorder, and whether new and material evidence has been received to reopen the claim of entitlement to service connection for asbestosis will not be addressed in this Board decision. The Veteran requested a Board hearing in his February 2018 Substantive Appeal for these three issues. Following this vacatur, these three issues will be forwarded to the Board’s Hearing Branch for the scheduling of this hearing. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral eye disorder, to include cataracts, arcus senilis, pinguecula, and refractive error (claimed as blurred vision), is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous September 2019 remand directives regarding the bilateral eye disorder issue. The Board remanded the issue for a VA medical opinion to be obtained. VA medical opinions were obtained in December 2019. However, the VA examiner did not use the correct legal standard for the refractive error diagnosis. For the cataracts, arcus senilis, and pinguecula diagnoses, the VA examiner did not discuss the September 1971 service treatment record (STR), as was specifically requested by the Board in its remand directive. Another remand is required for an adequate VA medical opinion to be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a heart disorder is remanded. Initially, subsequent to the August 2020 Supplemental Statement of the Case (SSOC), the Agency of Original Jurisdiction (AOJ) added relevant VA treatment records pertaining to this issue to the Veteran’s electronic claims file. The AOJ did not review this new evidence in the first instance. This evidence was received prior to the transfer of this issue to the Board. Thus, a request for a waiver is not appropriate, and the issue must be remanded back to the AOJ for the issuance of a SSOC. 38 C.F.R. §§ 19.31, 19.37(a). Also, the Board cannot make a fully-informed decision on the heart disorder issue because the prior VA medical opinions have focused solely on the Veteran’s current coronary artery disease diagnosis. However, at the May 2019 VA examination, the Veteran was diagnosed with several current heart disorders. Upon remand, VA medical opinions must be provided for these other heart diagnoses. 3. Entitlement to service connection for hypertension is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous May 2020 remand directives regarding the hypertension issue. The Board remanded the issue for a VA medical opinion to be obtained. A VA medical opinion was obtained in August 2020. However, the VA examiner did not address the February 1971 STR that documents dizzy spells, as was specifically requested by the Board in its remand directives. When asked by the Board to address the Veteran’s testimony regarding Dr. A.F.’s diagnosis of hypertension in the 1970s, the examiner stated there was only one medical record during that time and did not address the Veteran’s lay statements. Another remand is required for an adequate VA medical opinion to be obtained. Stegall, 11 Vet. App. at 271. 4. Entitlement to service connection for dizziness is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous May 2020 remand directives regarding the dizziness issue. The Board remanded the issue for a VA medical opinion to be obtained. A VA medical opinion was obtained in August 2020. However, the VA examiner did not address the February 1971 STR that documents dizzy spells, as was specifically requested by the Board in its remand directives. The examiner’s rationale for the negative nexus opinion centered around the fact that the Veteran does not have a current diagnosis of dizziness. However, during the appeal period, the Veteran was diagnosed with dizziness at the February 2018 VA examination. This rationale is inadequate. Another remand is required for an adequate VA medical opinion to be obtained. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed cataracts are at least as likely as not related to his active military service. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed arcus senilis are at least as likely as not related to his active military service. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed pinguecula are at least as likely as not related to his active military service. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s current diagnosis of refractive error. The examiner must opine whether it is at least as likely as not that there was aggravation of this pre-existing congenital defect during the Veteran’s active military service by a superimposed disease or injury, so as to in turn result in an additional disability, to include any incremental increase or non-permanent aggravation of the condition. In forming these opinions, the examiner must address the Veteran’s hearing testimony that he had blurry vision in service and his in-service exposure to U/V light, wind, and dust, as well as the in-service treatment for burning of the eyes and blurred vision in September 1971. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed acute, subacute, or old myocardial infarction is at least as likely as not related to his active military service. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed congestive heart failure is at least as likely as not related to his active military service. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed mitral regurgitation is at least as likely as not related to his active military service. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed aortic regurgitation is at least as likely as not related to his active military service. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed trivial tricuspid regurgitation is at least as likely as not related to his active military service. In forming these opinions, the examiner must address the Veteran’s hearing testimony that he sought treatment in the 1970s for his chest pain. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed hypertension is at least as likely as not related to his active military service, to include the February 1971 in-service treatment for a dizzy spell and to include the Veteran’s hearing testimony that he was first diagnosed with hypertension during basic training when he had a dizzy spell, blurriness, fainted, and was treated by a medical unit. The examiner must also address the February 2018 VA examination that linked the Veteran’s current lightheadedness to poorly controlled hypertension and the Veteran’s hearing testimony that Dr. A.F. diagnosed him with hypertension at St. Vincent’s in the 1970s. The examiner is advised the lack of contemporaneous records showing complaints of or treatment for hypertension, alone, is insufficient rationale for a nexus opinion. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently diagnosed dizziness is at least as likely as not related to his active military service, to include the February 1971 in-service treatment for a dizzy spell and the Veteran’s lay reports of fainting while running in basic training and his statements of dizziness during and since service. The examiner must also address the Veteran’s report of current dizziness with elevated blood pressure. The examiner is advised the lack of contemporaneous records showing complaints of or treatment for dizziness, alone, is insufficient rationale for a nexus opinion.   5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send him a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.