Citation Nr: 21030667 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-58 560 DATE: May 19, 2021 REMANDED Entitlement to service connection for a heart disability, due to exposure to herbicide agents or as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1966 until his honorable discharge in April 1968, with service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal with Bronze Star and Vietnam Campaign Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran presented sworn testimony during a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to service connection for a heart disability is remanded. The Veteran contends his heart disability stems from service. Specifically, the Veteran argues his heart disability is related to exposure to herbicide agents. See February 2015 VA Form 21-526EZ. In the alternative, the Veteran contends his heart disability is secondary to his service-connected posttraumatic stress disorder (PTSD), as well as secondary to (nonservice-connected) hypertension. See August 2015 Notice of Disagreement. The Veteran's service personnel records confirm he served in the Republic of Vietnam from September 1966 to September 1967. The Veteran's exposure to herbicide agents is presumed. Thus, the remaining questions for the Board are whether the Veteran has a diagnosis of ischemic heart disease (IHD) which is presumptively related to his exposure to herbicide agents or a diagnosis of any other heart condition that is related to active service or a service-connected disability. In May 2015, the Veteran was afforded a Veterans Evaluation Services (VES) examination for heart conditions, during which the examiner diagnosed congestive heart failure and cardiomyopathy. The examiner indicated the Veteran's congestive heart failure and cardiomyopathy did not qualify within the generally accepted medical definition of ischemic heart disease. It was also noted that the etiology of the Veteran's congestive heart failure and cardiomyopathy was unknown. The examiner did not offer and opinion as to the etiology of the Veteran's congestive heart failure and cardiomyopathy and did not address the Veteran's contention that his heart disorders were due to chemicals. The only heart disability which is among the disorders for which service connection is presumed given presumptive exposure to herbicide agents is ischemic heart disease. 38 C.F.R. § 3.309(e). The Board notes congestive heart failure and (nonischemic) cardiomyopathy are not listed or contemplated among the disease associated with certain herbicide agents under 38 C.F.R. § 3.309(e), thus consideration of service connection for any heart disability (other than ischemic heart disease) on a presumptive basis due to herbicide agent exposure is not warranted in this case. However, despite the presumptive regulations, a Veteran may establish service connection based on exposure to herbicide agents with proof of actual, direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the Board finds additional development is needed to determine the etiology of the Veteran's congestive heart failure and (nonischemic) cardiomyopathy on a direct basis. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, since the May 2015 VES examination, the Veteran has submitted additional private treatment records indicating additional heart disabilities; additional VA treatment records have also been added to the Veteran's claims file. In August 2015 the Veteran was admitted to Barnes Jewish Hospital and underwent implantation of a biventricular cardioverter defibrillator. Medical records note the following procedure indications: (1) other primary cardiomyopathy, (2) LBBB (primary prevention of SCD), and (3) chronic systolic heart failure. January 2021 private medical records note cardiology problems including cardiomyopathy, chronic systolic heart failure, and ICD (implantable cardioverter-defibrillator) in place. March 2021 private medical records note cardiology problems including left bundle branch block, nonischemic cardiomyopathy, and asymptomatic paroxysmal atrial fibrillation. March 2021 VA (Active) Problem List includes (1) left bundle branch block, (2) dilated cardiomyopathy, (3) automatic implantable cardiac defibrillator in situ, and (4) atrial fibrillation. Here, the Board cannot make a fully-informed decision on the issue of entitlement to a heart disability, including on a secondary basis, because no VA examiner has provided an etiological opinion on this issue, nor has an examiner opined whether any of the Veteran's service-connected disabilities cause or aggravated his heart disability. As such, a remand is necessary for examination and opinion concerning the nature of the Veteran's current heart disability and whether any disabilities are causally related to his period of service. Additionally, although the Veteran may not have a heart disorder on the list of diseases that VA has associated with exposure to herbicide agents, service connection may still be granted on a direct basis for other conditions based on such exposure. 38 C.F.R. §§ 3.303(d), 3.309(e); Combee, 34 F.3d 1039. The matters are REMANDED for the following action: 1. Afford the Veteran an additional opportunity to submit or identify any outstanding pertinent evidence that has not already been associated with the claims file. The Agency of Original Jurisdiction (AOJ) should then attempt to obtain those records if the appropriate authorization is provided. 2. Ensure all outstanding VA treatment records are associated with the claims file. 3. After the above is completed, the AOJ should arrange for an examination by an appropriate examiner to determine the nature and etiology of any currently diagnosed heart disability. The claims file, and a copy of this REMAND, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. Following a review of the entire record, to include the Veteran's lay statements concerning onset and continuity of symptomatology, the examiner should address the following: (a.) Identify/diagnose any heart disability that presently exists or that has existed during the appeal period. (b.) The examiner should specifically state whether a diagnosis of ischemic heart disease is warranted. (c.) For each diagnosis identified, other than ischemic heart disease, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability manifested in service or is otherwise causally or etiologically related to the Veteran's military service, including exposure to herbicide agents therein. The clinician is advised that service connection can be established due to exposure to herbicide agents by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran's heart disabilities are not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. The examiner should note the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (d.) For each diagnosis identified, other than ischemic heart disease, the examiner should state whether such manifested within one year of the Veteran's service separation in April 1968. (e.) Additionally, for each diagnosis identified, other than ischemic heart disease, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability is: Proximately due to the Veteran's service-connected PTSD and/or obstructive sleep apnea, including medications prescribed for the service-connected disabilities, or Aggravated beyond its normal progression by the Veteran's service-connected PTSD and/or obstructive sleep apnea, including medications prescribed for the service-connected disabilities. In providing the requested opinion, it is noted that "permanent worsening" or increase in severity is not required to demonstrate aggravation. If such aggravation is found to exist, the examiner should provide an assessment, if possible, of the baseline level of impairment of the heart disability prior to aggravation. The examiner should then provide a quantification, if possible, of the level of additional impairment above and beyond its baseline level imposed by the service-connected PTSD and/or obstructive sleep apnea. (Continued on the next page) 4. A complete rationale must be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any additional evidence would permit such an opinion be made. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.