Citation Nr: 22013187 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 19-05 667 DATE: March 8, 2022 REMANDED Entitlement to service connection for residuals of a cerebrovascular accident (CVA) (claimed as a stroke) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1959 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge. In July 2020, the Board denied the Veteran's claim for service connection. He appealed the decision to the Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, the Veteran's attorney, and VA's Office of General Counsel (OGC) filed a Joint Motion for Partial Remand (JMPR). The parties agreed that remand was necessary because "the Board erred by failing to ensure that VA satisfied its duty to assist in obtaining private treatment records," "did not address whether [a private doctor's] letter indicated a link to service to warrant a VA examination," and failed to address favorable competent testimony. In April 2021, the Court vacated the Board's decision and remanded the matter for readjudication consistent with the JMPR. The following August, the Board remanded the Veteran's claim for additional development. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for residuals of a cerebrovascular accident (CVA) (claimed as a stroke) is remanded. In December 2021, the Veteran underwent a central nervous system and neuromuscular disease examination. There, the medical examiner noted the Veteran's cerebrovascular accident (CVA) and residuals but found them unrelated to service. She did so for two reasons. First, the "initial signs and symptoms of a pending stroke did not come until . . . [more than] 30 years after separation." And second, the Veteran's CVA and residuals "[are] not recognized as a condition related to [tactical herbicide] exposure." Although likely not material to the ultimate opinion, the examiner relied on the Veteran's self-report of transient ischemic attacks beginning in 2011. However, the claims file includes private treatment records documenting that the Veteran had a TIA as early as March 2008. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). More problematic is the second half of the opinion. As drafted, it's unclear whether the examiner's opinion was based on the fact that the Veteran's disability is not on the presumptive list of diseases associated with herbicide exposure. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that it is inappropriate to "permit the denial of direct service connection simply because there is no presumptive service connection."). Under these circumstances a new opinion is necessary. As the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on whether the Veteran's cerebrovascular accident (and residuals) had its clinical onset during service or is due to an event or incident of the Veteran's period of active service, including tactical herbicide exposure. In the opinion, the examiner must take into account the Veteran's personal circumstances and how the recognized risk factor(s) apply in his particular case. The examiner may not rely solely on the fact the Veteran's stroke residuals are not on the presumptive list of diseases associated with herbicide exposure. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.