Citation Nr: 1031226 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 06-01 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for heart disease. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to May 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2008, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. In August 2008 the Board remanded the case for further action by the originating agency. The case has been returned to the Board for further appellate action. 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 Veteran contends that service connection is warranted for a low back disability and heart disease as both were incurred secondary to events that occurred during active duty service. With respect to his low back, the Veteran contends that one of his lumbar discs was injured during an April 1960 spinal tap at the Great Lakes Naval Hospital. The record currently contains some of the Veteran's service treatment records, including the April 1960 narrative summary from the Veteran's hospitalization and two clinical record cover sheets. The RO contacted the National Personnel Records Center (NPRC) in March 2007 and requested copies of any additional clinical records from the Great Lakes Naval Hospital, but a negative reply was received in May 2007. The Veteran was asked to provide any service records in his possession in a May 2007 duty to assist letter. The Veteran did not have any additional records to submit, but has contended throughout the claims period that his complete records of hospitalization at the Great Lakes Naval Hospital are not included in the claims file. The Board's August 2008 remand ordered that the RO should make further efforts to search for any additional service treatment records, including hospital records from the Great Lakes Naval Hospital. The record does not indicate that the originating agency made any attempt to comply with the Board's August 2008 order. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). While only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall, the originating agency in this case made no effort to search for additional records. Therefore, remand is required to ensure compliance with the Board's August 2008 remand orders. The Board's August 2008 remand also ordered that the Veteran should be provided a VA examination and medical opinion to determine the etiology of his heart disease. While a VA examination was conducted in November 2008, the medical opinion provided by VA examiner is not responsive to the Board's remand instructions. The examiner was instructed to determine whether it was at least as likely as not that the Veteran's heart disease was etiologically related to the Veteran's military service. The VA examiner's opinion, while addressing the Veteran's primary contention that he developed hypertension in service that subsequently caused heart disease, is too narrow in scope and does not address the specific question posed by the Board. As noted above, the Board must ensure compliance with its remand instructions. See Stegall, supra. Therefore, upon remand, the claims folder should be returned to the November 2008 VA examiner for an addendum medical opinion. Accordingly, the case is REMANDED for the following action: 1. Make additional efforts to obtain any outstanding service treatment records from the NPRC or other sources, to include any records associated with the Veteran's hospitalization at the Great Lakes Naval Hospital and reports from the Surgeon General's Office (SGO). All attempts to obtain these records must be documented, and if no additional records are available, this fact should also be documented. 2. Return the claims folder to the VA examiner who performed the November 2008 VA examination. If the examiner is not available, the claims folder and a copy of this remand should be provided to an examiner with the necessary expertise to render a medical opinion in this case. The claims folder or copies of relevant evidence from the claims folder, and a copy of this remand must be made available to and be reviewed by the examiner. The examiner should review the claims folder and provide an addendum report that states whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's heart disease was incurred or aggravated due to any incident of the Veteran's active duty service, including his treatment for hyperventilation syndrome, tachycardia, dizzy spells, and episodes of syncope. The examiner should provide the full rationale for any expressed opinion. The examiner is advised that the Veteran is competent to report incidents that occurred during active duty service, and his reports must be considered. 3. If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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. 2009). _________________________________________________ Mary Gallagher 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).