Citation Nr: 0735590 Decision Date: 11/09/07 Archive Date: 11/26/07 DOCKET NO. 00-22 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for coronary artery disease, to include as due to inservice Agent Orange exposure and inservice tobacco use. 2. Entitlement to service connection for rheumatoid arthritis, to include as due to inservice Agent Orange exposure and inservice tobacco use. 3. Entitlement to service connection for sinusitis, to include as due to inservice Agent Orange exposure and inservice tobacco use. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from August 1974 to June 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board denied the claim on appeal by an April 2005 decision. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Based on a September 2006 Joint Motion for Court Remand (Joint Motion), the Court remanded the Board's decision for development in compliance with the Joint Motion. A letter was sent to the veteran and his representative on October 2, 2006 in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. A letter was received from the veteran's representative in November 2006, enclosing a 90-day letter response form noting that the veteran had no additional evidence to submit. The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND In the Joint Motion, the Court found that remand was required because the Board had not yet provided adequate reasons and bases in its April 2005 decision and because VA had not yet met its duty to assist. First, each decision of the Board must include reasons and bases in support of the findings and conclusions. 38 U.S.C.A. § 7104(d)(1) (2007). Where the Board's reasons and bases do not sufficiently and clearly explain the findings and conclusions, remand is required for additional explanation. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In the April 2005 decision, the Board determined that no examination for sinusitis was required because there was no evidence of sinusitis during service. The Court noted, however, that there was inservice evidence of sinusitis and that, accordingly, additional explanation regarding the Board's determination was required. The Board again determines that no VA examination is required regarding the veteran's claim of entitlement to service connection for sinusitis. VA's duty to assist includes providing a medical examination when an examination is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (2007). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the inservice event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006), the Court found that a VA examination was required to adjudicate a claim for service connection where there was a current disability, the Board found credible evidence of an inservice injury, the medical opinions of record noted that the current disability could have been caused by the inservice injury, and the Board did not find that the veteran's lay testimony regarding continuity of symptomatology was not credible. But this case is distinguishable from McLendon. Here, there is a current disability of sinusitis and inservice notations of allergic rhinitis, sinusitis, and bronchitis. But the credible evidence of record does not indicate that the current sinusitis may be associated with the inservice notations. Unlike in McLendon, there are no medical opinions of record suggesting a relationship between current sinusitis and service and there is no lay testimony of record suggesting continuity of sinusitis symptomatology. Accordingly, on remand, no examination is required. Second, under the Veterans Claims Assistance Act of 2000, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VA's duty to assist includes making reasonable efforts to get relevant private records that the veteran has adequately identified. 38 U.S.C.A. §§ 5103A(b)(1); 38 C.F.R. § 3.159(c). Here, the Court found that VA has not yet met its duty to assist because the veteran provided adequate information suggesting that Agent Orange was sprayed in Panama (where he served) and VA did not attempt to obtain any records or evidence confirming whether Agent Orange was sprayed in Panama. 38 C.F.R. § 3.159(c). Accordingly, remand is required for such reasonable efforts. In addition, as noted above, VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Court found that an examination is required with respect to the veteran's claim for entitlement to service connection for coronary artery disease (CAD) because there is currently diagnosed CAD, credible evidence of inservice smoking, and medical evidence of record noting treatment for CAD with findings of a history of tobacco abuse. 38 C.F.R. § 3.159(c)(4). Accordingly, remand is required for a VA examination. Accordingly, the case is remanded for the following action: 1. The RO must provide notice as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO must request that the veteran send in any evidence not currently of record that Agent Orange was sprayed in Panama, specifically, in the time period during which he was stationed in Panama and in the area in which he was stationed. 2. The RO must attempt to obtain information and/or evidence regarding whether Agent Orange was sprayed in Panama during the time that the veteran was stationed there. 3. Once any additional records are on file, the RO must provide the veteran with an appropriate VA heart examination. The entire claims file must be made available and reviewed by an appropriate VA examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must provide an opinion regarding the etiology and onset of CAD, to include whether CAD is at least as likely as not related to the veteran's military service, to any incident therein, or to the veteran's history of smoking. If the examiner cannot provide the above requested opinions without resort to speculation, it must be so stated. A complete rationale for all opinions must be provided. The report prepared must be typed. 4. The RO must notify the veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. The RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).