Citation Nr: 1108717 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 05-19 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a heart disorder, to include as due to ionizing radiation exposure and to include entitlement to compensation for a heart disorder under the provisions of 38 U.S.C.A. § 1151 for treatment received through the VA. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to January 1978. He had Reserve service from May 1975 to July 1975, as well as service in the Reserve and Army National Guard following his active duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, in which the RO denied service connection for a heart disorder. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Wichita, Kansas. In his June 2005 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO (Travel Board hearing). In a February 2006 letter, the Board sent notice to the Veteran that his requested hearing was scheduled for late March 2006. The address on this notice was the correct mailing address of the Veteran. Thereafter, in a letter dated in mid-March 2006, the Board reminded the Veteran of the scheduled hearing. This reminder, however, was sent to the incorrect mailing address. The file indicates that the Veteran failed to appear for his hearing and failed to notify VA beforehand that he was unable to attend it, or otherwise present good cause as to why it should be rescheduled. In correspondence received in late March 2006, the Veteran filed a motion to have his Travel Board hearing rescheduled on the basis that he did not receive timely notice of his scheduled hearing because the mid-March 2006 hearing reminder was sent to the incorrect address. The Board considered the motion and denied the Veteran's request in May 2006 because he, in fact, did receive timely notice of the scheduled hearing in the February 2006 correspondence, which was sent to his correct mailing address. In June 2006, the Board remanded the claim on appeal for further development. In the June 2006 remand, the Board noted that the Veteran had indicated that he desired to seek VA compensation for a heart disorder as due to VA treatment on the basis of 38 U.S.C. § 1151. This issue was referred to the RO for appropriate action. In a February 2009 supplemental statement of the case (SSOC), the Appeals Management Center (AMC) denied the claim for service connection for a heart disorder, and found that compensation for a heart disorder pursuant to 38 U.S.C.A. § 1151 was not warranted. The claim for compensation pursuant to 38 U.S.C.A. § 1151 is part of the claim for service connection because it pertains to the same benefit for the same disability. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006). In addition, as will be discussed in greater detail below, the Veteran has argued that he has a current heart disorder which is related to in-service exposure to ionizing radiation. Accordingly, the Board has characterized the issue on appeal as reflected on the title page. Subsequent to issuance of the most recent SSOC, the Veteran submitted additional evidence in support of his claim. In his November 2010 Informal Hearing Presentation (IHP), the Veteran's representative waived consideration of the evidence by the Agency of Original Jurisdiction (AOJ). Thereafter, additional VA treatment records were associated with the claims file. The Veteran's representative waived AOJ consideration of this evidence in a January 2011 IHP. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2010). The Board notes that, in March 2009, the Veteran filed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, naming the Military Order of the Purple Heart (MOPH) as his representative. However, in correspondence dated in March 2009, a National Service Officer from MOPH indicated that that organization's policy was not to take accept power of attorney over claims which were already in appeal status and, as such, she could not assist him with his claim. As such, Disabled American Veterans remains the Veteran's representative. Subsequent to the June 2006 Board remand, the Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court). In a September 2006 Order, the Court indicated that it was not clear whether the Veteran was seeking to appeal the Board's decision to remand his claim or whether he sought redress pursuant to the Court's power under the All Writs Act. In either event, the Court found that it was not appropriate to entertain either course of action at that time, and the matter was dismissed for lack of jurisdiction. The Veteran thereafter filed a petition for a writ of mandamus ordering the Secretary to comply with the June 2006 Board remand. The petition was denied in a September 2007 order. A motion for reconsideration was denied in November 2007. The Veteran appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In August 2008, the Federal Circuit dismissed the appeal for lack of jurisdiction. The United States Supreme Court denied certiorari in December 2008. In June 2009, the Veteran again filed a petition for a writ of mandamus. In September 2009, the Court dismissed this petition for lack of jurisdiction. In October 2009, the Court denied motions for reconsideration or a panel decision. The Court entered judgment in November 2009. In June 2010, the Federal Circuit affirmed the Court's dismissal of the Veteran's petition for a writ of mandamus. In April 2009, the Veteran filed a Notice of Appeal (NOA) with the Court regarding a December 2008 Board decision. However, the Secretary of VA notified the Court that the Veteran had not obtained a final decision from the Board dated in December 2008. As the Veteran did not submit any evidence or argument that there was a December 2008 Board decision, in a February 2010 Memorandum Decision, the Court dismissed the appeal. In October 2010, the Federal Circuit granted the Secretary's motion for summary affirmance of the February 2010 Memorandum Decision. In the June 2006 remand, the Board noted that, in his June 2005 substantive appeal, the Veteran had requested reopening of a claim for service connection for PTSD. The request to reopen the claim for service connection for PTSD was referred to the AOJ for appropriate action; however, the record does not reflect that this matter has since been addressed by the AOJ. In addition, in a September 2007 statement, the Veteran indicated that he was seeking pension relief as he was unable to secure gainful employment. While, in an October 1995 decision, the Board found that the Veteran was not basically eligible for nonservice-connected disability pension, and the RO denied entitlement to nonservice-connected pension in March 2004, it does not appear that the September 2007 claim for nonservice-connected pension has been addressed by the AOJ. The request to reopen a claim for service connection for PTSD and a claim for nonservice-connected pension have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, the claims file reflects that further action on the claim on appeal is warranted, even though such action will, regrettably, further delay an appellate decision in this appeal. The Veteran has argued that he has a current heart disorder related to medication given to him by VA. In note written on an August 2000 statement of medical care cost recovery account, the Veteran asserted that his cardiac disability was induced by essential hypertension and Haldol, Prolixin, and Stelazine. In an October 2003 VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), the Veteran indicated that his heart condition was induced by Clonidine. He noted treatment at the VA Medical Center in Kansas City, MO in June and July 2000, and at the Munson Army Hospital, at Fort Leavenworth, KS in July 1989 and August 1991. Compensation under 38 U.S.C.A. § 1151 shall be awarded for a veteran's qualifying additional disability in the same manner as if such additional disability was service connected. A disability is a qualifying additional disability if it was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA. In addition, the proximate cause of the disability must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2010). To determine whether a veteran has additional disability, VA compares the veteran's condition immediately before the beginning of hospital care, medical or surgical treatment, upon which the claim is based, to the veteran's condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b) (2010). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). In addition to a showing of additional disability, there must be evidence showing either that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without the informed consent of the veteran, in compliance with 38 C.F.R. § 17.32. Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In December 2008, a VA physician reviewed the claims file to provide an opinion regarding whether or not the use of Clonidine or any other medicine prescribed by VA resulted in the Veteran's heart condition or additional heart disability. The physician noted that the Veteran carried diagnoses including arteriosclerotic heart disease, cardiomyopathy, atrial fibrillation, and hypertension. He added that a pacemaker defibrillator device had been inserted to help the Veteran's cardiac arrhythmia. The physician indicated that, after careful review of the claims file, the only time that Clonidine was mentioned in the voluminous records was in July 2000, but that atrial fibrillation actually started in May 2000. The physician commented that the Veteran had been started on Maxzide in 1988 and Lopressor in 1989, but that the Veteran's hypertension was apparently difficult to control, and, so the physician inferred that Clonidine was started as an adjunct to other medications to treat hypertension, although he could not state this with certainty because a list of medications was not found in the claims file. The physician concluded by stating that, as Clonidine was documented only in 2000 and noting that the Veteran had received appropriate antihypertensives, Maxzide and Lopressor, prior to its use, it was his opinion that Clonidine did not result in the Veteran's heart disorder nor did it contribute to additional heart disability. He further opined that the VA Medical Center (VAMC) did not fail to exercise the degree of care that had been expected of a reasonable health care provider in 2000. He added that it was not possible to say beyond mere speculation whether the Veteran or his representative was furnished with informed consent. Despite the foregoing opinion, review of the claims file reflects that, in a September 1990 VA Form 9, the Veteran reported that he continually took Clonidine. During VA treatment in November 1992 the Veteran stated that he needed a refill of Clonidine. A January 1993 record of VA treatment reflects that the Veteran was referred from the Mental Health Clinic for medication refill. Clonidine was refilled. A September 1998 record of VA treatment reflects that the Veteran wanted his Clonidine refilled, adding that it had last been filled in February. In addition, records of VA treatment reflect that the Veteran was prescribed Haldol in January 1993. Because VA undertook to obtain a VA medical opinion to evaluate the claimed heart disorder, the Board must ensure that such opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). The foregoing evidence indicates that the December 2008 opinion was based on an inaccurate factual premise, as there is evidence that the Veteran received Clonidine from VA prior to 2000. Accordingly, the Board finds that remand for a new VA examination and medical opinion is warranted. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative). In addition, the Board finds that, on remand, the VA examiner should consider and address the direct service connection and ionizing radiation aspects of the Veteran's claim for service connection. The Board notes that service treatment records from the Veteran's Reserve service include a blood pressure reading of 168/92 in August 1982 while being treated for bronchitis. Records from the Thompson-Brumm-Knepper Clinic (Washington University) dated in April 1971 include a blood pressure reading of 150/90. He had requested evaluation and indicated that recent treatment at Fort Leavenworth noted elevated blood pressure readings. While the record reflects that the Veteran had Reserve and National Guard service in addition to his active duty from July 1975 to January 1978, the record does not contain any verified or specific dates of any periods of active duty for training. The AMC/RO should verify the dates of such service on remand. As discussed in the introduction, the Veteran has asserted that he has a current heart disorder related to exposure to ionizing radiation during service. Records of treatment from Washington University include a Health Medical History for FALL 1971 wherein the Veteran reported that he used radioactive materials in June 1970 (prior to service). In a December 1983 Agent Orange or Ionizing Radiation Questionnaire, the Veteran reported no exposure to ionizing radiation. While he denied exposure to ionizing radiation in his September 2003 claim for service connection, in his June 2004 notice of disagreement, he indicated that he was in the Ordnance Corps and in the vicinity of ionizing radioactive radiation exposure in technical inspections. In an April 2005 e-mail to a VA clinical specialist, the Veteran asserted that he had hypertension from exposure to ionizing radiation in the Ordnance Corps in the technical inspection of nuclear weapons. Service personnel records reflect that the Veteran's principal duties included mechanical maintenance officer, maintenance platoon leader and electrical maintenance officer. The Veteran does not allege, nor does the record show, that he has a "radiogenic disease" as identified under 38 C.F.R. §§3.309(d)(2) or 3.311(b)(2). Service connection may, however, still be awarded on a direct basis without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043- 44 (Fed. Cir. 1994). On remand, the AMC/RO should attempt to verify the Veteran's claimed in-service radiation exposure. In addition, the Board notes that the Veteran has not been furnished notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) regarding the ionizing radiation aspect of his claim. The AMC/RO should provide him with corrective notice on remand. The record also reflects that there are outstanding medical records which are potentially pertinent to the claim on appeal. In a statement received in August 2007, the Veteran referred to evidence from Munson Army Hospital (dated in 1971), Irwin Army Hospital (dated in 1984), a Sparta, Wisconsin Army National Guard facility, the Grafenwoehr health clinic (dated in 1977), the Bamberg health clinic (dated in 1976), the George S. Patton Army Hospital (dated in 1979), the Fort Monmouth Army Hospital (dated in 1989), the Aberdeen, Maryland Army Hospital, the Fort Snelling, Minnesota Health Clinic, and the Albuquerque VAMC. In a statement received in September 2007, the Veteran asked that VA obtain all medical evidence from 2007, including weekly measurements made from the San Francisco VAMC. VA treatment records currently associated with the claims file include records of treatment from the Leavenworth VAMC (dated from May 1982 to July 1993, from September 1998 to March 2007, from January 2009 to March 2009, and from October 2010 to November 2010), the Kansas City VAMC (dated from January 1996 to July 2007) and the Columbia VAMC (dated from January 1996 to July 2007). The foregoing suggests that the Veteran received treatment at the Albuquerque and San Francisco VAMCs which is potentially pertinent to the appeal; however, no records of treatment from these facilities have been associated with the claims file. In addition, a May 1995 record from the Leavenworth VAMC reflects that the Veteran was admitted to the domiciliary on March 3, 1995 and was discharged on March 10, 1995. The VAMC indicated that no hospital summary was available. A February 2009 record of treatment from the Leavenworth VAMC indicates that the Veteran was seen at the pacemaker clinic on November 13, 2008. An October 2010 record of treatment from the Leavenworth VAMC indicates that the Veteran was admitted and transferred to the KUMC in the spring, adding that he had been discharged to the domiciliary, but left the domiciliary against medical advice. The foregoing indicates that additional records of VA treatment from the Leavenworth VAMC, specifically, dated in March 1995, November 2008, and the spring of 2010 are available. As any outstanding records of VA treatment are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In obtaining records in the custody of a Federal department or agency, VA will make as many requests as are necessary to obtain relevant records, and VA will end its efforts to obtain such records only if it concludes that the records sought do not exist, or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2) (2010). The foregoing evidence suggests that medical records pertinent to the Veteran's claim are available from several Federal facilities. While service treatment records currently associated with the claims file include records from the Fort Monmouth Army Hospital dated in 1989 and the Bamberg health clinic dated in 1976, records of treatment from the Munson Army Hospital (dated in 1971), Irwin Army Hospital (dated in 1984), a Sparta, Wisconsin Army National Guard facility, the Grafenwoehr health clinic (dated in 1977), the George S. Patton Army Hospital (dated in 1979), the Fort Monmouth Army Hospital (dated in 1989), the Aberdeen, Maryland Army Hospital, and the Fort Snelling Health Clinic have not been associated with the claims file. On remand, the AMC/RO should obtain any additional service treatment records from the Veteran's Reserve and National Guard service which are not currently associated with the claims file and should request any outstanding treatment records from the above-named facilities. VA also has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). An April 2005 record of treatment from the Leavenworth VAMC reflects that the Veteran underwent cardiac catheterization in February 2004 at St. Joseph Hospital. A March 2006 record of treatment from the Columbia VAMC reflects that the Veteran was transferred from University Hospital. An October 2010 record of VA treatment reflects that, in March 2010, the Veteran was referred to Kansas University Medical Center (KUMC) to have the right ventricular lead of his CRTD device replaced. Despite the foregoing, treatment records from these private facilities have not been associated with the claims file. On remand, the AMC/RO should attempt to obtain records from these facilities. In addition, in his September 2003 claim for service connection, the Veteran indicated that he was receiving disability benefits from the Social Security Administration (SSA). During treatment at Heartland Regional Medical Center in February 2007, the Veteran reported that he had been retired since he started having cardiac problems in the late 1990s. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). As the Veteran's SSA records have not previously been associated with the claims file and may be pertinent to the claim on appeal these records should be requested. Finally, the Board notes that, while the AMC addressed the ionizing radiation aspect of this appeal in the April 2005 statement of the case, and addressed the 38 U.S.C.A. § 1151 aspect of this appeal in the February 2009 supplemental statement of the case, the Veteran has not been furnished the law and regulations pertinent to these aspects of his claim. Accordingly, if, after the aforementioned development is completed and the claim is readjudicated, the benefit sought is not granted, the AMC/RO should include the pertinent law and regulations regarding these aspects of the claim in a supplemental statement of the case. See 38 C.F.R. § 19.29(b). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should provide the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claim for service connection for a heart disorder, to include as due to ionizing radiation exposure. 2. The AMC/RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who have treated him for a heart disorder. Of particular interest are records of treatment from the Albuquerque VAMC, the San Francisco VAMC, the Leavenworth VAMC (dated in March 1995, March 2007 to January 2009, and from March 2009 to October 2010), Munson Army Hospital (dated in 1971), Irwin Army Hospital (dated in 1984), a Sparta, Wisconsin Army National Guard facility, the Grafenwoehr health clinic (dated in 1977), the George S. Patton Army Hospital (dated in 1979), the Fort Monmouth Army Hospital (dated in 1989), the Aberdeen, Maryland Army Hospital, the Fort Snelling Health Clinic, Saint Joseph Hospital (dated in February 2004), University Hospital (dated in March 2006), and KUMC (dated in March 2010). After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, notations to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. The AMC/RO should contact the National Personnel Records Center (NPRC), and any other appropriate source, to verify any periods of active duty for training during the Veteran's Reserve and National Guard service. The AMC/RO should request any additional service treatment records from the Veteran's Reserve and National Guard service which are not currently associated with the claims file. 4. The AMC/RO should undertake any development necessary to ascertain whether the Veteran was exposed to ionizing radiation during service, to include reportedly examining nuclear weapons. This development should include procuring DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation), if it exists. 5. The AMC/RO should obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits pertinent to the claim on appeal, as well as copies of all medical records underlying those determinations. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, the Veteran should be afforded a VA examination to determine the etiology of any heart disorder. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. Following examination of the Veteran and a review of the record, the examiner should identify any current heart disorder. In regard to any diagnosed heart disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current heart disorder was incurred or aggravated as a result of active service, to include any verified period of active duty for training and any verified in-service exposure to radiation. The examiner should also render an opinion, consistent with the record and sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran incurred additional heart disability as the result of VA medical treatment, to include medications prescribed by VA, including Clonidine and Haldol. If so, the physician should also opine as to whether the proximate cause of such disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA; or (b) an event not reasonably foreseeable. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 7. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 8. After ensuring that the development is complete, re-adjudicate the claim. If not fully granted, issue a supplemental statement of the case before returning the claim to the Board, if otherwise in order. The AMC/RO should ensure that the supplemental statement of the case includes all pertinent law and regulations regarding claims involving exposure to ionizing radiation and claims pursuant to 38 U.S.C.A. § 1151. The appellant has the right to submit additional evidence and argument on the matter that 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 (CONTINUED ON NEXT PAGE) 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 Supp. 2010). _________________________________________________ RENÉE M. PELLETIER 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) (2010).