Citation Nr: 22018177 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-47 158 DATE: March 28, 2022 REMANDED Entitlement to service connection for a heart condition diagnosed as atrial fibrillation to include as due to exposure to Agent Orange herbicides is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1967 to September 1971. The Veteran testified before the undersigned Veterans Law Judge at a December 2021 Board of Veterans' Appeals (Board) hearing. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran initially seemed to appeal the issue of an increased rating claim for his bilateral hearing loss in the October 2018 VA Form 9, which initiated the current appeal. However, the Veteran's appeal regarding hearing loss increased rating claim is no longer before the Board because the Veteran withdrew the claim in 2019 in order to seek review under the modernized appeal system. The Veteran also confirmed his current appeal pertains to his claim for atrial fibrillation only. See July 2019 VA Form 21-4138, Statement in Support of Claim (stating "[b]ilateral hearing loss is not currently on legacy appeal. The VA 9 was submitted only for Atrial Fibrillation, and not for Hearing Loss.") 1. Service Connection for a Heart Condition Diagnosed as Atrial Fibrillation Upon review, the Board finds that a remand is warranted because additional development is necessary prior to the adjudication of this appeal. Specifically, the Veteran contends that his heart condition is due to his exposure to Agent Orange herbicides. See Hearing Transcript. The Veteran has also submitted a medical opinion which links his current heart condition to in-service exposure to Agent Orange. See December 2021 Letter from Dr. V.K.N. However, the Veteran's exposure to Agent Orange herbicides has not been conceded. The Board notes that the Veteran's DD Form 214 confirms he received the Vietnam Service Medal and the Vietnam Campaign Medal. The Veteran also testified that he served aboard the USS Ranger and that he was at Yankee Station. Notably, the record is unclear as to the Veteran's period of service during the Vietnam war and whether the USS Ranger was located in the territorial seas of the Republic of Vietnam since no development has been conducted to confirm or verify the Veteran's exposure to herbicide agents. In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Procopio v. Wilkie, the that the phrase "service in the Republic of Vietnam" in 38 U.S.C. §1116 includes the territorial sea of the Republic of Vietnam (extending 12 nautical miles from the shores) and is not solely limited to the landmass or inland waterways. 913 F.3d 1371 (Fed. Cir. 2019). On remand, the Agency of Original Jurisdiction (AOJ) should undertake further development to verify whether the USS Ranger entered the territorial sea of the Republic of Vietnam while the Veteran was serving onboard, such as by requesting that the records used to find that the ship was in the "official waters" be associated with the claims file. The Board notes that the private medical opinion from Dr. V.K.N. did not provide adequate rationale to support his conclusion that the Veteran's current heart condition was due to his exposure to Agent Orange. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (A medical examination and opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.) As such, the Board is unable to grant the claim based on the Dr. V.K.N.'s medical opinion. The Board further notes that the April 2018 VA examination report did not address whether the Veteran's current heart disability was related to or caused by exposure to herbicide agents. As such, if the Veteran's exposure to herbicide agents is confirmed, a separate opinion addressing whether his heart condition is related to such exposure should be obtained. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to identify his dates of service aboard the USS Ranger. 2. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents, to specifically include whether the USS Ranger (CVA 43) was within the 12-nautical-mile territorial sea of Vietnam while the Veteran was aboard. Contact all government records repositories to obtain this information. The records used in finding that the USS Ranger was in the official waters of the Republic of Vietnam, and any other pertinent records should be requested and associated with the claims file, and considered in making the determination. If more details are needed, contact the Veteran to request the information. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 3. If the Veteran's exposure to herbicide agents is confirmed, the AOJ should obtain a medical opinion regarding the etiology of the Veteran's claimed heart condition. 4. Request a medical opinion from an appropriate examiner(s) to determine the nature and etiology of the Veteran's arterial fibrillation. Based on a review of the relevant evidence of record, the examiner is asked to provide the following information: 5. Identify the Veteran's currently diagnosed heart conditions including arterial fibrillation. 6. Opine whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's arterial fibrillation or heart condition other than coronary artery disease manifested in, was caused by, or is otherwise etiologically related to his period of service, to include presumed exposure to Agent Orange. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 7. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.