Citation Nr: 0812002 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-24 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for atrial septal defect, status post surgical repair. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The veteran had active military service from September 1950 to June 1952. The Board of Veterans' Appeals (Board) denied service connection for heart disease in January 1982. In connection with that appeal, the veteran appeared at the Board, in Washington, DC, and gave testimony at a hearing conducted in October 1981. Neither the transcript nor the tape recording of that hearing is currently available. This appeal to the Board arises from a December 2003 decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. The Board denied the appeal in June 2006. The veteran appealed the June 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2007 Order, the Court granted a Joint Motion for Remand filed by the parties. The case was thereafter returned to the Board. Hearings were held at the RO in November 2005 and March 2008 before Veterans Law Judges. Transcripts of the hearings are of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran maintains that he has a congenital heart defect that became worse while he was in military service. He claims that he was out on patrol, during the Korean conflict, when he had an episode of passing out because of a hole in the heart. Available service medical records disclose that the veteran was seen at a clinic on May 25, 1951, and the impression was cardiac insufficiency. He was hospitalized for medical observation and cardiac evaluation, at which time he related a history of prior rejection from the military because of heart disease. He complained of precordial stabbing pain on exertion, palpitation, and easy fatigability. On examination, the heart was not enlarged and there were no thrills. A Grade II apical systolic murmur and later also a Grade II pulmonic systolic murmur were reported. "No disease" was one diagnosis recorded during hospitalization for cardiac evaluation. At discharge from the hospital on May 29, 1951, the diagnosis was listed was "suspect rheumatic heart." The service separation examination was negative for complaints or findings of heart defects. Received in August 1978 was a statement from R.D.G., M.D., reflecting the veteran's treatment in 1978. An initial examination revealed findings including a 2/6 systolic murmur. A chest x-ray revealed cardiomegaly with pulmonary vascular congestion. An electrocardiogram was interpreted as normal. The pertinent diagnosis was early congestive heart failure. Medical statements from a private hospital were received in October 1980 and reveal that the veteran underwent a patch closure of a large atrioseptal defect in June 1980. His postoperative course was reported as quite smooth. The final diagnoses included "secundum" atrioseptal defect, congenital in origin. A statement from M.W.H., M.D., dated in October 1980, noted that, since release from the hospital, the veteran had been doing well without postoperative problems. An affidavit from R.F.D., the appellant's platoon leader during service, attested to the veteran's outstanding dedication during service. The affiant recalled that the veteran had once mentioned that he had passed out prior to his assignment to the platoon. Received in February 1981 were medical statements to the combined effect that the appellant was seen in October 1974, and the impression was left ventricular enlargement. Received in February 2003 was an August 1980 report from Gerard S. Kakos, M.D., a thoracic surgeon, who related that he saw the veteran in follow-up, two months after the patch closure of his atrial septal defect. It was observed that the veteran seemed to be getting along quite well and was asymptomatic. The physical examination was essentially negative, and the previously heard murmur was not detected. The chest x-ray was clear with some mild cardiac silhouette enlargement, but was otherwise quite stable. An electrocardiogram showed sinus rhythm with occasional premature ventricular contractions. Private correspondence from R.K.K., M.D., dated in November 2005 suggested the "possibility" that the veteran's combat service during the Korean conflict "could have" worsened a congenital heart defect. A letter from A.B.A., M.D., dated in May 2006 stated that the veteran was in combat during the Korean conflict and his heard condition was worsened. No reasons or bases were provided with this opinion. On VA examination in March 2006, the examiner reviewed all available medical records and military treatment records for the veteran. After performing a thorough examination, it was noted that the veteran's atrial septal defect was less likely as not (less than 50/50 probability) increased in severity or worsened by his time on active duty. The examiner noted that atrial septal defects are congenital in nature, and symptoms often develop in the fourth decade of life or later. It was concluded that the veteran's presentation represented a normal progression in symptoms of a large atrial septal defect, and if the defect had been worsened by military service, the veteran's symptoms would have been more pronounced at an earlier age. The examiner noted that it is not uncommon for soldiers to become faint or "fall out" while on a march. While the March 2006 VA examiner provided a thorough examination and provided adequate reasons and bases for her opinion, she expressed her opinion in terms of "less likely than not." According to Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the standard language required for discussing the presumption of soundness is not "less likely than not" but "clear and unmistakable evidence." The "clear and unmistakable" standard is a higher standard than the "more likely than not" standard. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003). Consequently, a more definitive medical nexus opinion is needed to decide this appeal. Accordingly, this case is REMANDED to the RO for the following actions: 1. The AMC/RO should contact the veteran, through his representative, and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to the claims on appeal. With any necessary authorization from the veteran, the RO should attempt to obtain and associate with the claims files any medical records identified by the veteran which have not been secured previously. 2. If the AMC/RO is unsuccessful in obtaining any medical records identified by the veteran, it should inform the veteran and his representative of this and ask them to provide a copy of the outstanding medical records. 3. The veteran should be afforded a VA cardiovascular examination to determine if the preexisting atrial septal defect was aggravated in service. The claims folder should be made available to the cardiovascular specialist for review before the examination. If a cardiovascular specialist is not available, a fee-basis examination with a cardiovascular specialist is to be ordered. All indicated tests and studies are to be performed, and a comprehensive medical history is to be obtained. Prior to the examination, the claims folder and a copy of this remand 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 examiner. The examiner should express an opinion regarding the following question: Did an atrial septal defect clearly and unmistakably exist prior to service without undergoing aggravation in service? The examiner is specifically requested to NOT use the words "more likely than not" in expressing an opinion. The complete rationale for all opinions expressed should also be provided. The claims folders, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report is to reflect that a review of the claims files was made. 4. 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. 5. Thereafter, the AMC/RO should review the record and ensure that all development actions have been conducted and completed in full. The AMC/RO should then undertake any other action required to comply with the notice and duty-to-assist requirements of the VCAA and VA's implementing regulations. Then, the AMC/RO should re-adjudicate the issue of entitlement to service connection for atrial septal defect, status post surgical repair. If the benefit sought on appeal is not granted to the veteran's satisfaction, the AMC/RO should issue a supplemental statement of the case and provide the veteran and his representative with an appropriate opportunity to respond. 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 Supp. 2005). _________________________________________________ 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) (2007).