Citation Nr: 21026257 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-62 311A DATE: April 30, 2021 REMANDED The issue of service connection for a heart disability, including arteriosclerotic heart disease and hypertension and as due to in-service exposure to an herbicide agent, is remanded. The issue of service connection for chronic obstructive pulmonary disease (COPD) with pulmonary tuberculosis, including as secondary to service-connected chronic bronchitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1963 to January 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board reopened the previously denied claims of service connection for COPD with bronchitis and pulmonary tuberculosis and a heart disability. The Board remanded the claims on the merits for additional development. The claim of service connection for a heart disability has been expanded and recharacterized to include the issue of service connection for hypertension, in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). In a February 2021 rating decision, the Decision Review officer (DRO) granted service connection for chronic bronchitis, which was previously on appeal. The claim was previously adjudicated as service connection for COPD with bronchitis and pulmonary tuberculosis. See Board remand (March 2020). Therefore, the grant of service connection for chronic bronchitis does not represent a full grant of the benefit sought and the claim of service connection for a COPD with pulmonary tuberculosis has been recharacterized accordingly. 1. The issue of service connection for a heart disability, including arteriosclerotic heart disease and hypertension and as due to in-service exposure to an herbicide agent, is remanded. The Veteran claims that he has a heart disability and that it is due to his in-service exposure to an herbicide agent. The Veteran’s exposure to an herbicide agent has been conceded due to his nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See VA memorandum (June 2020). In this case, the evidence shows that the Veteran has been diagnosed as having hypertension; however, the evidence is unclear as to whether the Veteran has or had a heart disability, other than hypertension, during the appeal period. For example, the Veteran’s VA treatment records do not show that he has or had a heart disability. Furthermore, in January 2015, the Veteran was last afforded a VA heart examination; the examiner found that the Veteran had no current heart disability and that he denied heart problems. However, a June 2019 private hospital report shows that the Veteran was admitted to the hospital due to difficulty breathing; he reported that he had a history of arteriosclerotic heart disease. Therefore, a remand is necessary to schedule the Veteran for a VA examination regarding his claim of service connection for a heart disability. Additionally, upon remand private treatment records, regarding treatment for the Veteran’s heart disability, should be obtained and associated with the record, as the evidence suggest that there may be outstanding treatment records from a Dr. Igrobay, regarding the Veteran’s heart disability. See VA Form 21-8940, received February 2021. 2. The issue of service connection for COPD with pulmonary tuberculosis, including as secondary to service-connected chronic bronchitis, is remanded. The Veteran claims that his COPD with pulmonary tuberculosis is due to his military service. The Veteran’s service treatment records (STRs) show that he was hospitalized in August 1964 for a chronic cough for six months and was diagnosed as having acute bronchitis. In a July 1991 treatment record, a physician diagnosed COPD secondary to chronic bronchitis. A December 2020 VA examination report reveals that a VA physician diagnosed COPD and pulmonary tuberculosis and found that they were less likely than not due to the Veteran’s military service. The VA examiner reasoned that the Veteran’s COPD was due to cigarette smoking. The examiner further indicated that COPD and pulmonary tuberculosis “have no proven connection to exposure” to an herbicide agent, such as Dioxin. For the following reasons, a remand is necessary to obtain a VA opinion to address the Veteran’s claim of service connection for COPD with pulmonary tuberculosis. The December 2020 VA opinion is flawed, as the examiner provided a vague rationale and did not explain whether the Veteran’s COPD and tuberculosis were the result of his military service, to include as due to his in-service bronchitis. Additionally, a July 1991 physician indicated that the Veteran’s COPD was secondary to chronic bronchitis, without a rationale. There is no VA opinion of record, with a rationale, addressing whether the Veteran’s COPD and/or his tuberculosis is secondary to his service-connected chronic bronchitis. Also, there is no opinion of record addressing whether the Veteran’s tuberculosis manifested to a degree of 10 percent or more within three years following his separation from service. Therefore, these matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 regarding any treatment for a heart disability, to specifically include treatment records from Dr. Igrobay. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile 2. Schedule the Veteran for a VA examination regarding his claim of service connection for a heart disability. a. The examiner should identify all heart disabilities since the date of the Veteran’s claim in April 2016, even if the disability has resolved. The examiner should address the June 2019 private hospital report that shows the Veteran reported a history of arteriosclerotic heart disease. b. If the Veteran is or was diagnosed with a heart disability that is not listed under 38 C.F.R. § 3.309 (e), then the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s heart disability, to include hypertension, had its onset in service or is otherwise related to service, to include as due to exposure to an herbicide agent. The examiner must provide a complete rationale for the opinion. 2. Refer the claims file to an examiner for an opinion as to the Veteran’s claim of service connection for COPD with pulmonary tuberculosis. The Veteran does not need to be examined, unless the examiner determines it is necessary. The examiner should provide opinions to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s COPD with pulmonary tuberculosis had its onset in service or is otherwise related to service, to include exposure to Agent Orange. The examiner should address the Veteran’s August 1964 STR that he had a cough for 6 months and that he was diagnosed as having chronic bronchitis. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tuberculosis manifested to a degree of 10 percent or more within three years following his separation from service. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected chronic bronchitis caused his COPD with pulmonary tuberculosis. d. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected chronic bronchitis aggravated his COPD with pulmonary tuberculosis The examiner should address the July 1991 treatment record where a physician diagnosed COPD secondary to chronic bronchitis. The examiner must provide a rationale for each opinion. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.