Citation Nr: 1008530 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-04 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a heart disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The appellant had a verified period of active duty for training from April 1967 to August 1967. He had unverified additional periods of reserve duty through October 1986, at which time he was found physically unfit for further reserve service as a result of frequent premature ventricular contractions of the heart. Consequently, he was honorably discharged from the Unites States Army Reserves in February 1987. The nature of his as-yet unverified period of reserve service in October 1986 is a matter for further development as addressed in more detail below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant served periodically as a member of the U.S. Army Reserves from April 1967 to October 1986. As noted above, in October 1986 he was medically disqualified from further service due to frequent premature ventricular contractions of the heart, and in February 1987 he was honorably discharged from the Army Reserves. A March 1984 service department report of an electrocardiograph of the appellant is indicated to be within normal limits. At a July 1986 Army Reserve periodic examination, the appellant's heart, lungs, chest and vascular system were clinically evaluated as normal and were indicated to be normal by history, except that the appellant was noted to have a history of hypertension for the past eight to nine years, and to be normotensive on medication. In an October 13, 1986, letter, P.D.V., M.D., practicing in the areas of internal medicine and cardiology, asserted that the appellant had frequent ventricular premature contractions and was unable to perform military activity at that time. At an October 19, 1986, periodic Army Reserve examination, the appellant was found to be medically not qualified for retention in the Army Reserves as a result of frequent premature ventricular contractions that caused inability to perform military duty. The appellant contends that the October 19, 1986, Army Reserve periodic examination took place during a period of active duty for training. (See Notice of Disagreement received in November 2007; Informal Hearing Presentation dated in January 2010.) However, no attempt has been made by the RO to verify the dates and nature of this period of service. There is inadequate information in the claims file to verify the dates and nature of the period of service. The RO/AMC should contact all necessary sources in order to attempt to verify the dates and nature this claimed period of reserve service. See 38 U.S.C.A. 5103A(a)-(c). Generally, service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Regulations also provide that service connection may be granted for any disease 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). Laws pertinent to the specific facts of this case, where periods of reserve duty are at issue, provide that entitlement to service connection may be granted for disability resulting from disease or injury incurred or aggravated in active duty for training, or for disability resulting from injury incurred in inactive duty training. 38 U.S.C.A. §§ 101(24), 1110, 1131. When a disability is thus incurred, the period of service is considered active military, naval, or air service. 38 U.S.C.A. § 101(24). Thus, a period of active duty for training during which a disease or injury is incurred or aggravated is a period of active service based upon which service connection for the resultant disability may be service-connected. Accordingly, if it is found that, as alleged by the appellant, he had a period of active duty for training in October 2006, or for reasons not foreseen by the Board the RO/AMC determines that the appellant's claim is otherwise potentially capable of substantiation under the law, the following additional development, for the reasons stated below, should be conducted: (a) The Board notes that the appellant attended a VA examination in August 2007, but the examiner had difficulty determining the cause of the appellant's abnormal EKG at that examination or the cause of his history of ventricular ectopic beats. The examiner had to rely on history as provided by the appellant in forming his impressions because reports of private treatment approximately two years prior, including of an echocardiogram and stress test by Dr. P.D.V., and follow- up cardiac catheterization and coronary angiography at Washington Hospital, were not in the claims file. The RO/AMC should seek to obtain and associate with the claims file the identified records of private record treatment. (b) Also, in a VA Form 9 received in February 2008, the appellant, through his representative, completed the box entitled "Here is why I think that VA decided may case incorrectly" by requesting that the RO "[p]lease request [m]edical [d]ocumentation on veteran[']s condition from University Drive VAMC." It is not clear whether the appellant has in fact received treatment at the VA Medical Center on University Drive in Pittsburgh, Pennsylvania. The RO/AMC should obtain clarification on this point from the appellant and his representative, and, if any relevant records of VA treatment or examination are alleged to exist other than the August 2007 report of a VA examination (which is already associated with the claims file), those records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(a)-(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). (c) As there is evidence of significant heart symptomatology in October 1986, but not earlier, the appellant should thereafter be scheduled for a new VA examination for the purpose of determining whether disability of the heart was incurred or aggravated during his October 1986 period of reserve service. See 38 U.S.C.A. §§ 1110, 5103A(d); 38 C.F.R. § 3.6 (Duty periods). For purposes of future reference, the Board acknowledges that in a February 2008 VA Form 646, the appellant's representative requested that the Board review the appellant's statement dated November 23, 2007, and a statement of Dr. P.D.V. dated November 23, 2007. It appears from a review of the record, however, that the representative was referring to documents received by the RO on November 23, 2007, rather than dated on November 23, 2007. For example, the letter from Dr. P.D.V. discussed above was received on November 23, 2007, but is dated October 13, 1986. Accordingly, the case is REMANDED for the following action: 1. Contact all necessary sources to obtain verification of the appellant's claimed period of active duty for training in October 1986. This should include requesting from the appellant all information and documentation in his possession regarding the exact dates of the October 1986 period of service and whether the period of service consisted of active duty for training or inactive duty training. 2. If it is found that the appellant had a period of active duty for training in October 1986, or for reasons not foreseen by the Board the RO/AMC finds that the appellant's claim is otherwise potentially capable of substantiation under the law, the RO should conduct additional development, as follows: (a) Obtain clarification from the appellant and his representative as to the records of treatment or examination at the VAMC on University Drive in Pittsburgh, Pennsylvania, referred to in the VA Form 9 received in February 2008. The appellant and his representative should be requested to indicate whether they have knowledge of any records of treatment or examination other than the August 2007 VA examination report that is already associated with the claims file. If additional relevant VA medical records are indicated to exist, the RO should obtain copies of them and associate them with the claims file. (b) Request the appellant to identify all records of cardiovascular treatment from 1986 forward. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should obtain records from each health care provider the appellant identifies. The appellant should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. The private records sought should include reports of private treatment in approximately 2005, including of an echocardiogram and stress test conducted by Dr. P.D.V., and follow-up cardiac catheterization and coronary angiography at Washington Hospital. (c) After all relevant medical evidence is received, schedule the appellant for a VA examination and opinion with a physician with adequate expertise in the field of cardiology for an opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the appellant has a current heart disability that began during his period of reserve service in October 1986 or was aggravated (aggravation is defined as a chronic worsening of the underlying condition as opposed to a temporary flare-up of symptoms) during that period of service. The examiner must be provided with the precise dates of the appellant's reserve service in October 1986. The RO/AMC should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. The examiner is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. If no such determination can be provided without resort to mere conjecture or pure speculation, the examiner should so state. However, any such finding must be supported by a complete rationale. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the appellant until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ CHERYL L. MASON 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) (2009).