Citation Nr: 21028153 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-30 363 DATE: May 10, 2021 REMANDED Entitlement to service connection for atrial fibrillation and arrythmias is remanded. REASONS FOR REMAND The Veteran had active service from January 1969 to December 1971 and from September 1977 to February 1982. This matter comes before the Board of Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in November 2018 and August 2020. In August 2020, this matter was remanded in order to obtain any outstanding medical records and to afford the Veteran with another examination to determine the etiology of his atrial fibrillation disability. Entitlement to service connection for atrial fibrillation and arrythmias is remanded. The Board regrets the delay, but finds another remand is warranted. The post-Remand record shows that the Veteran had an examination for his heart in November 2020 in which the examiner reviewed the Veteran's file, saw him in person, and noted the Veteran was diagnosed with atrial fibrillation. The examiner also took into account the Veteran's report that he would get "flutter symptoms" starting in 1971 while on active duty and that he was exposed to herbicide agents. The Veteran said he was told at the time he had atrial fibrillation and was diagnosed with paroxysmal fibrillation in 2014. The examiner opined the Veteran's atrial fibrillation and arrythmia was less likely than not incurred in or due to the Veteran's time in service. The examiner reiterated that atrial fibrillation is not listed as one of the conditions subject to presumptive service connection due to exposure to herbicide agents. Additionally, the examiner explained the Veteran did not have atrial fibrillation on his separation examination and that this diagnosis was made in 2014, which was over 30 years after the Veteran's time in service. However, the Board finds that there has not been substantial compliance with the August 2020 remand instructions. The Board has reached this conclusion because the August 2020 examiner, in supporting the negative opinion, stated the Veteran was not diagnosed with his claimed condition until 2014. Tellingly, the Veteran's medical records indicate he was seen as early as 1984 for atrial fibrillation. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Moreover, the examiner's opinion did not take into account the Veteran's competent and credible lay claims of having observable problems with his disability since 1971-the Veteran has reported that he began to feel fluttering in his heart in 1971. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Therefore, the Board finds the August 2020 examiner's supporting rationale for the opinion to be inadequate as it did not properly consider all of the medical and lay evidence and another examination is warranted and a Remand to obtain an adequate opinion is required. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007), Stegall v. West, 11 Vet. App. 268, 271. While the appeal is in remand status, any outstanding VA and private treatment records should be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA and private medical records and associate them with the claims file (if any). If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. In order the comply with the earlier Remands, schedule the Veteran for an examination with an appropriate to determine the etiology of his atrial fibrillation. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Whether it is at least as likely as not the Veteran's currently diagnosed atrial fibrillation was incurred in or due to his time in service including his presumptive herbicide exposure. b. Whether it is at least as likely as not the Veteran's currently diagnosed atrial fibrillation was due to his exposure to herbicide agents. In rendering an opinion on this question, the examiner is not to rely solely on the fact that atrial fibrillation is not on the list of diseases subject to service connection due to exposure to herbicide agents. c. Whether atrial fibrillation it is at least as likely as not (50 percent or greater probability) that the Veteran's vertigo was caused by any service-connected disability including the medications he takes to treat these disabilities. d. Whether atrial fibrillation it is at least as likely as not (50 percent or greater probability) that the Veteran's vertigo was aggravated by any service-connected disability including the medications he takes to treat these disabilities. In providing answers to the above question the examiner should consider and discuss the service treatment and post-service records including the 1984 record showing his treatment for his disability. In providing answers to the above question the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology to include, his contention that he first had problem with heart fluttering in 1971. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. 3. In providing the etiology opinion, the examiner should also be aware of the facts that the Court held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating 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 in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.