Citation Nr: 1513425 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 13-13 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to a heart condition. 2. Entitlement to service connection for ischemic heart disease, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from October 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2010 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for high blood pressure. This matter further comes before the Board from a November 2010 rating decision in which the RO denied service connection for ischemic heart disease associated with herbicide exposure. In September 2014, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam from October 1970 through July 1971; thus, he is presumed to have been exposed to Agent Orange and/or other herbicide agents therein. 2. Resolving all reasonable doubt in his favor, the Veteran has been diagnosed with ischemic heart disease (coronary artery disease) which is presumed to have been caused by his herbicide exposure in service. CONCLUSION OF LAW Ischemic heart disease is presumed to be related to active service. 38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA) provisions with regard to the matter on appeal, but finds that, given the favorable action taken below no further analysis of the development of this claim is necessary. II. Factual Background and Analysis The Veteran contends he has ischemic heart disease that is related to exposure to Agent Orange (herbicides) while serving in Vietnam during the Vietnam era. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (to include hypertensive cardiovascular disease) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post service (one year for hypertensive cardiovascular disease). 38 U.S.C.A. §§ 1112 , 1113; 38 C.F.R. §§ 3.307 , 3.309. VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including ischemic heart disease, shall be service connected if manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307(a)(6). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The record reflects that the Veteran served in the Republic of Vietnam from October 1970 to July 1971; thus, he is presumed to have been exposed to Agent Orange and/or other herbicide agents therein. The record contains medical evidence showing that the Veteran does have ischemic heart disease, as well as medical evidence finding he does not have ischemic heart disease. In that regard, the Veteran submitted an Ischemic Heart Disease (IHD) Disability Benefits Questionnaire (DBQ) (VA Form 21-0960A) that had been completed by his private physician, Dr. Jordan, dated in June 2011, in which it was noted that the Veteran did have ischemic heart disease. Thereafter, however, on a VA examination in March 2013, the examiner found that the Veteran did not have ischemic heart disease. In a Heart Conditions DBQ report, dated in March 2013, Dr. Jordan checked "no" in response to the question of whether any of the Veteran's heart conditions qualified within the generally accepted medical definition of ischemic heart disease. In a letter dated in September 2014, Dr. Subramanium indicated he had been treating the Veteran since August 2012, for coronary artery disease, congestive heart failure and cardiomyopathy. Subsequent to the September 2014 videoconference hearing, the Veteran submitted an IHD DBQ that had been completed by his private physician, Dr. Subramanium, in January 2015. The DBQ indicated that the Veteran had ischemic heart disease, as well as coronary artery disease, congestive heart failure, angina, and atrial fibrillation. After having carefully reviewed the record, and weighing the evidence both in support of and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran has ischemic heart disease. Significantly, however, the most recent medical evidence from the Veteran's private treating physician, concludes that the Veteran does have ischemic heart disease. As noted above, ischemic heart disease is deemed associated with herbicide exposure and the Veteran had presumed herbicide exposure as a result of his Vietnam service. Thus, based on the foregoing and resolving any doubt in the Veteran's favor, entitlement to service connection for ischemic heart disease is warranted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for ischemic heart disease is granted. REMAND The Veteran contends that his hypertension is related to his heart disease. VA and private treatment records confirm that the Veteran has been diagnosed with hypertension, since approximately 2002. Further, as noted above, service connection has been granted for ischemic heart disease (coronary artery disease). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). What is missing in this case is competent medical evidence linking the Veteran's hypertension to ischemic heart disease. At the hearing in September 2014, the Veteran contended that he would be submitting documents from "Dr. Andy" (Dr. Subramanium) to support his claim. The Board acknowledges that several medical records/reports have been submitted from Dr. Subramanium, dated up to January 2015, however, none of these address whether the Veteran's hypertension may be related to the now-service-connected ischemic heart disease. Further, of record is a VA examination dated in March 2013 in which the examiner opined that it was less likely as not that the Veteran's hypertension was related to active service or to Agent Orange exposure therein, but did not, however, address whether his hypertension may be related to the service-connected ischemic heart disease. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement that the evidence "indicates" that the veteran's disability "may" be associated with his service is a low threshold. Id. Thus, considering the record on appeal, including the Veteran's contentions, the Board finds that a VA examination/opinion is in order to address whether the Veteran's hypertension is related to his ischemic heart disease. Id. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide updated information regarding any recent pertinent treatment he may have received for his hypertension. With any assistance needed from the Veteran, obtain any additional pertinent records and associate them with the claims folder. Negative replies should be requested. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine whether his hypertension is related to his ischemic heart disease, whether directly or by aggravation. The claims folder and efolder must be made available to the examiner for review, and the examiner should specifically note in the examination report that the files have been reviewed. The examiner should be asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that the Veteran's hypertension is causally related to, or aggravated (permanently worsened), by his ischemic heart disease. The examiner must explain the rationale for all opinions given. If the examiner is unable to provide any of the requested opinions without resorting to speculation, he/she should so state and should provide an explanation as to the reason(s) therefor. 3. Thereafter, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case (SSOC) which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs