Citation Nr: 1016597 Decision Date: 05/05/10 Archive Date: 05/19/10 DOCKET NO. 06-06 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for coronary artery disease, claimed as secondary to the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from January 1961 to January 1964 and from October 1968 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In October 2009 the Veteran testified before the undersigned Acting Veterans Law Judge in a hearing conducted at the RO. A transcript of that hearing is of record. 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 on his part. REMAND The Board finds that further development is required before the appeal can be adjudicated. The Veteran asserts his cardiac disorder is due to or aggravated by his service-connected PTSD. Review of the claims file shows that the Veteran's service-connected PTSD may contribute to some degree to his cardiac symptoms; see opinion letters from private cardiologist Jerald A. Young dated in August 2003 and January 2005; see also VA examinations performed in February 2008 and February 2009. Dr. Young's January 2005 letter indicated that stress was a "significant contributor" in the development of coronary artery disease in the Veteran's case. While suggestive of some link between the PTSD and coronary artery disease, it remains unclear if the relationship is "at least as likely as not" and also whether the contributing stress from the Veteran's PTSD resulted in coronary artery disease or aggravated an already-existing heart disorder. Thus, the opinions currently of record do not address with sufficient clarity the question of whether this Veteran has a cardiac disorder that is caused by or permanently worsened by his service-connected PTSD, and in fact the VA examiners reports appear to be internally inconsistent in this regard. The Board notes that 38 C.F.R. § 3.310 was amended during the course of the Veteran's appeal, effective October 10, 2006, in order to conform VA's regulation to the Court's decision in Allen v. Brown, 7 Vet. App. 439, 448 (1995). In that decision the Court held that the term "disability" as used in 38 U.S.C.A. § 1110 referred to impairment of earning capacity, and that such definition mandated that any additional impairment (emphasis supplied) of earning capacity resulting from an already service-connected condition shall be compensated. Under the revised regulation, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(b) (2007-2009). However, this requirement was not contained in prior versions of the regulation. See 38 C.F.R. § 3.310 (2006). Therefore, in deciding the claim, the originating agency should apply the former version of the regulation. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The, the Veteran should be afforded an examination by a physician with sufficient expertise to determine the etiology of his current cardiac disorder(s). If possible, the examination should be performed by a physician other than the VA examiner previously involved, in order to obtain a fresh opinion. The claims folder must be made available to and reviewed by the examiner. Any indicated studies and diagnostics should be performed. Based upon the examination results and the review of the claims folder, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the Veteran has a cardiac disorder that was either (1) caused or (2) permanently worsened to any degree by his service-connected PTSD. The rationale for the opinion expressed should also be provided. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 2. Upon completion of the above, readjudicate the claim on a de novo basis. If the benefit sought on appeal is not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. No action is required of the Veteran until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This case 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). _________________________________________________ ERIC S. LEBOFF Acting 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).