Citation Nr: 18124077
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 06-24 408
DATE:	August 7, 2018
REMANDED
Entitlement to service connection for a heart condition other than ischemic heart disease, claimed as atrial fibrillation, is remanded.
Entitlement to service connection for hypertension is remanded.
Entitlement to service connection for erectile dysfunction is remanded.
REASONS FOR REMAND
The Veteran served on active duty with the United States Army from February 1968 to November 1969, to include a tour of duty in Vietnam.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for PTSD, erectile dysfunction, hypertension, and atrial fibrillation.  
The Board denied the claims for service connection in an April 2012 Board decision.  The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2013, the parties (VA Secretary and the Veteran) entered into a settlement agreement, in which VA agreed that service connection for PTSD should be granted.  The parties then filed a Joint Motion for Partial Remand, and in October 2013, the Court vacated and remanded for further consideration, those portions of the Board decision which denied service connection for heart disabilities other than ischemic heart disease, erectile dysfunction, and an acquired psychiatric disorder other than PTSD.  In a March 2014 decision, the Agency of Original Jurisdiction (AOJ) implemented the terms of the parties’ settlement agreement and granted service connection for major depressive disorder, anxiety disorder, and adjustment disorder, in addition to PTSD.
In September 2014 and June 2015, the Board remanded the claims for further development.  In the June 2015 remand, the issue of “heart disabilities” other than ischemic heart disease had been recharacterized to separate the claims of service connection for hypertension, which is a cardiovascular disease but not a disease of the heart, and atrial fibrillation.
In July 2017 the Board denied the claims.  The Veteran appealed that decision to the Court.  The parties submitted a Joint Motion for Partial Remand, wherein the Veteran agreed he was not appealing the part of the Board’s decision that denied entitlement to service connection for hypertension as secondary to the service-connected PTSD, or the denial of the claim for service connection for chronic obstructive pulmonary disease.  He appealed the remaining claims.  In February 2018 the Court issued an Order which vacated, in pertinent part, the Board’s July 2017 decision and remanded the remaining claims, as listed above, to the Board for readjudication in accordance with the Joint Motion for Partial Remand. 
The issue of entitlement to an earlier effective date for the grant of a 10 percent rating for a service-connected sinus disability was noted to have been raised by the record in the April 2012 and September 2014 Board decisions.  As the claim had not been adjudicated by the AOJ, the Board did not have jurisdiction over it, and it was referred to the AOJ for appropriate action.  38 C.F.R. § 19.9 (b).  As it does not appear any action has yet been taken by the AOJ, the matter is again referred.

1. Entitlement to service connection for a heart condition other than ischemic heart disease, claimed as atrial fibrillation, is remanded.
The Veteran claims entitlement to service connection for a heart condition other than ischemic heart disease, claimed as atrial fibrillation, as due to service, including exposure to herbicides therein, or in the alternative, as secondary to service-connected posttraumatic stress disorder (PTSD) and/or ischemic heart disease.
In the March 2017 Joint Motion for Partial Remand, the parties agreed that while the Board addressed the Veteran’s claim for service connection for atrial fibrillation as secondary to PTSD, the Board failed to address the theory of service connection for atrial fibrillation as secondary to the service-connected ischemic heart disease, which had been raised by the record.  In this regard, the parties noted that a VA examiner in October 2016 stated that coronary artery disease was a risk factor for the cause of atrial fibrillation and was closely linked to it.  Thus, given that coronary artery disease is a form of ischemic heart disease, for which service connection had been established, the October 2016 medical opinion raised the theory of secondary service connection for his claimed atrial fibrillation, which should be adjudicated.  See Kay v.  Principi, 16 Vet. App. 529, 534 (2002).  
The Board notes that while the VA examiner in October 2016 opined that the Veteran’s atrial fibrillation was less likely than not caused by or aggravated by ischemic heart disease, no rationale or explanation was offered in support of this conclusion.  This is particularly significant given the fact that as noted above, the examiner identified coronary artery disease as a causal risk factor for atrial fibrillation.  Thus, the Board must obtain an addendum opinion addressing secondary service connection service connection for atrial fibrillation as secondary to the service-connected ischemic heart disease.
2. Entitlement to service connection for hypertension is remanded.
The Veteran contends that he is entitled to service connection for hypertension as due service, to include conceded exposure to herbicides therein.  He also claims entitlement to service connection for hypertension as secondary to the service-connected PTSD.  
The Board notes that hypertension is not a disease that has been found to be presumptively associated with exposure to herbicide agents.  See 38 C.F.R. § 3.309 (e).  However, service connection is available on a direct basis if there is evidence that the Veteran’s hypertension is related to herbicide agent exposure.  See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994).  Here, the Veteran’s exposure to herbicide agents is conceded based on his service in Vietnam.
In the March 2017 Joint Motion for Partial Remand, the parties determined that Board erred when it relied on an inadequate medical examination to deny the Veteran’s claim for hypertension.  While the examiner opined that the Veteran’s hypertension was not due to service or the service-connected PTSD, the examiner did not specifically discuss the effect of herbicide exposure on hypertension, as instructed by the June 2015 Board remand.  Stefl v. Nicholson, 21 Vet. App. 120,  123 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998).  Accordingly, on remand, an addendum opinion regarding whether the Veteran’s hypertension was caused by exposure to herbicide agents on a non-presumptive, i.e. direct, basis, is necessary. 
3. Entitlement to service connection for erectile dysfunction is remanded.
Concerning the claim for service connection for erectile dysfunction, the parties to the Joint Motion for Partial Remand noted that the March 2016 and December 2016 VA examination reports identified hypertension as a risk factor for erectile dysfunction.  Accordingly, the issue of service connection for erectile dysfunction was determined to be inextricably intertwined with the issue of entitlement to service connection for hypertension, and must be remanded.  See Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separately claims are “intimately connected,” the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined if one claim could have significant impact on the other).
The matters are REMANDED for the following action:
1. Obtain the Veteran’s relevant VA treatment records since July 2016 and associate them with the claims file.
2. After completion of the above, return the claims file to the VA examiner who prepared the March, October and December 2016 reports, pursuant to the Board’s June 2015 remand instructions (or to any other appropriate VA examiner(s) if that individual is unavailable), to provide an addendum medical opinion report.  A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.  The examiner must review the claims file in its entirety, to include the medical literature of record and a copy of this remand, and that review must be noted in the report.  Thereafter, the examiner should provide an opinion with respect to the following:
(a) Is it as least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused or aggravated by his exposure to herbicide agents in service?
(b) Is it at least as likely as not (50 percent or greater degree of probability) that any diagnosed heart condition other than ischemic heart disease, claimed as atrial fibrillation, was caused by his service-connected ischemic heart disease?  
(c) If not caused by the service-connected ischemic heart disease, is it at least as likely as not (50 percent or greater degree of probability) that any diagnosed heart condition other than ischemic heart disease, claimed as atrial fibrillation, is permanently worsened in severity beyond the natural progress of the condition (as opposed to a temporary exacerbation of symptoms) by the service-connected ischemic heart disease?
If a permanent worsening of the Veteran’s heart condition other than ischemic heart disease, claimed as atrial fibrillation, beyond natural progression is found (aggravation), the examiner should, to the extent possible, attempt to quantify the amount of worsening of the heart disease beyond the baseline level of that disability that is due to the service connected ischemic heart disease.
In rendering the requested opinions, the examiner is asked to address the clinical significance of the October 2016 VA examiner’s findings that coronary artery disease was a risk factor for the cause of atrial fibrillation and was closely linked to it.
(d) If and only if, the examiner finds that hypertension was caused or aggravated by exposure to herbicide agents in service, the examiner must opine as to whether it is at least as likely as not (50 percent or greater degree 
 
of probability) that the Veteran’s erectile dysfunction and/or heart disease other than ischemic heart disease, claimed as atrial fibrillation, was caused or aggravated (permanently worsened in severity beyond the natural progress of the condition) by hypertension.  
 
C. CRAWFORD
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Azizi-Barcelo, Counsel

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