Citation Nr: 1031228 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 04-25 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for coronary artery disease, to include as secondary to service-connected post- traumatic stress disorder (PTSD) or due to exposure to Agent Orange. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from June 1968 to June 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In December 2004, the Veteran testified before a Hearing Officer at the Indianapolis RO. A transcript of this hearing is of record. In August 2007, the Board remanded this claim for additional development. The case has been returned to the Board and is ready for further review. In a January 2010 letter to the Board, the Veteran raised a new theory of entitlement as a basis for service connection for the Veteran's coronary artery disease, i.e., that he should be service connected for coronary artery disease on a presumptive basis because of exposure to Agent Orange in service in Vietnam. However, while all potential theories of entitlement to a benefit under the law and regulations implicated by the record must be considered, such a presumption based on Agent Orange exposure is not yet law. See Floyd v. Brown, 9 Vet. App. 88 (1996) (need to consider all potential theories of entitlement). On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. As required by 38 U.S.C. 1116, the Department of Veterans Affairs (VA) will issue regulations through notice and comment rule-making procedures to establish the new presumptions of service connection for those diseases. Those regulations will take effect on that date that a final rule is published in the Federal Register. Until that time, VA does not have authority to establish service connection and award benefits based upon the planned new presumptions. On November 20, 2009, the Secretary of Veterans Affairs directed the Board to stay action on all claims for service connection that cannot be granted under current law but that potentially may be granted based on the planned new presumptions of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. As this appeal now contains at least one claim that may be affected by these new presumptions, namely a claim for coronary artery disease, the Board must stay action on that matter in accordance with the Secretary's stay. Once the planned final regulations are published, the adjudication of any case or claim that has been stayed will be resumed. The Board would point out that the coronary artery disease is the only disorder identified by the Veteran in his claim for service connection based on exposure to Agent Orange. The appeal for service connection for hypertension, to include as secondary to PTSD 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The record shows that the Veteran was awarded Social Security Administration (SSA) disability benefits in July 2000; a copy of the SSA decision was received by VA in February 2008, and has been associated with the file. The Court has held that where there is notice the Veteran is receiving SSA disability benefits VA has a duty to acquire a copy of the decision granting such benefits and the supporting medical documents. Murincsak v. Derwinski, 2 Vet. App. 363, 372-3 (1992). The supporting documents have not been obtained. Although VA is not obligated to follow a determination made by SSA, these records may be relevant to the matter on appeal. In a statement received by the Board in January 2010, the Veteran reported that he had been treated at the Reid Hospital and Health Care Services in October 1969 for heart problems. He requested that these records be obtained and associated with his file, and he submitted a signed VA form 21-4142 with his letter. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Accordingly, the case is REMANDED for the following action: 1. Contact the private facility identified by the Veteran in his January 2010 VA Form 21-4142, Reid Hospital and Health Care Services, and attempt to obtain the private treatment records of his October 2009 treatment. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain these records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran and his representative must then be given an opportunity to respond Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 2. Request all medical and legal documents pertaining to the Veteran's application for SSA disability benefits. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2009); See also Stegall v. West, 11 Vet. App. 268 (1998). 4. Following completion of the above, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. 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. 2009). _________________________________________________ F. JUDGE FLOWERS 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).