Citation Nr: 1032968 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 02-15 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for heart disease, to include coronary heart disease and hypertension. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Esquire, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1958 to January 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Columbia, South Carolina Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in March 2004. A transcript of this hearing has been associated with the claims folder. In an August 2004 decision, the Board reopened the Veteran's claim and remanded the appeal for further development. However, in August 2005, the Board denied the Veteran's reopened claim. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and, in August 2007, the Court vacated the Board's decision and remanded the case back to the Board for further proceedings. The Board remanded the case for further development in January 2008. In a December 2008 decision, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court which, by order dated in March 2010, granted a joint motion for remand and remanded this matter to the Board for compliance with the instructions in the joint motion. 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 Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim for service connection for heart disease, to include coronary heart disease and hypertension. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). Service treatment records reflect that, the entrance examination demonstrated Veteran's blood pressure was148/80 with a negative chest X-ray and a normal clinical evaluation of the heart. The separation examination shows a blood pressure of 120/68, a normal clinical evaluation of the heart and the Veteran was evaluated with a Grade III systolic murmur. Further testing however, revealed a diagnosis of a functional cardiac murmur of no hemodynamic significance with no findings of complications or sequalae and he was cleared for separation. An October 1963 VA outpatient treatment report reflects findings of a soft murmur and a blood pressure recording of 158/90. A November 1963 VA examination report reflects a blood pressure recording of 138/90, the presence of a heart murmur, a diagnosis of valvular heart disease and the Veteran was subsequently admitted to the VA hospital for further observation and examination. An April 1964 VA examination reflects blood pressures of 142/78 and 134/82, a cardiac catheterization completely within normal limits and a diagnosis of a functional heart murmur of no significance. Private and VA medical records from June 1989 to May 2008 reflect that the Veteran was variously treated for and diagnosed with coronary artery disease, hypertension and peripheral vascular disease. Private medical records reflect that the Veteran underwent a quadruple coronary artery bypass graft in October 1996. In an October 2004 VA examination the Veteran was diagnosed with coronary artery disease, congestive heart failure per the Veteran's report and a murmur of aortic stenosis. The Veteran was also noted to have hypertension. The examiner opined that it was less likely than not that the Veteran's coronary artery disease and aortic stenosis originated in service or was otherwise related to service, finding that he would not make a diagnosis of hypertension based on a single borderline blood pressure reading within a year of discharge from military service, that the Veteran had a normal cardiac catheterization in 1964 and he apparently developed some calcific aortic stenosis on a degenerative basis since then. In August 2010, the Veteran, through his private attorney, submitted to the Board, without waiver of consideration by the agency of original jurisdiction (AOJ), a medical opinion by a private physician. The Veteran's private attorney specifically requested, in an August 2010 statement, that the Board consider such evidence, however, as the Veteran has not waived AOJ consideration of this evidence, the AOJ should review and consider this evidence and issue a supplemental statement of the case if the claim is not granted. See 38 C.F.R. §§ 19.29, 19.31, 20.1304(c) (2009). The Board also notes that in August 2010 statements, the Veteran and his private attorney indicate that they intended to include hypertension in his claim for service connection for a heart disease, to include coronary artery disease. As such, the Board finds that the matter must also be remanded for appropriate development with respect to the hypertension component of this claim. The August 2010 private medical opinion refers to specific medical reports of record, in concluding, particularly looking at the blood pressure readings of September 1958 and October 1963, that the Veteran would have been diagnosed with hypertension. The private physician also opined that it was at least as likely as not that the Veteran's cardiac problems would have been affected by hypertension during these years of service. Finally, the private physician notes that the medical review of 2004 stated a single hypertensive reading but did not address the initial reading in 1958. Thus, this opinion calls into question the October 2004 VA examiner's conclusions and indicates a possible relationship between the Veteran's current heart disabilities and his active service. In considering the findings of a heart murmur in service, the treatment for a heart murmur and high blood pressure readings in 1963 (within one year of the Veteran's active service) and 1964, the current diagnoses of coronary artery disease and hypertension, the Veteran's lay contentions that his heart disability has existed since his active service, the October 2004 VA examiner's opinion that the Veteran's current heart conditions were less likely than not related to his active service and the August 2010 private medical opinion which indicates a possible relationship between the Veteran's current heart disabilities and his active service, the Board finds that a VA examination is necessary to obtain an opinion as to whether the Veteran's heart disease, to include coronary heart disease and hypertension, is related to or caused by his military service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA examination by an appropriate specialist to determine the current nature and etiology of his current heart disease, to include coronary artery disease and hypertension, if found to be present. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file, to include: (1) service treatment reports showing findings of a heart murmur in service; (2) findings of high blood pressure and a heart murmur in 1963 (within a year following his discharge from active service) and 1964; and (3) the opinions furnished in October 2004 and August 2010. The examination is to include a review of the Veteran's history and current complaints, as well a comprehensive evaluation and any tests deemed necessary. The examiner is asked to offer an opinion addressing the following questions: a. Does the Veteran have a current diagnosis of heart disease, to include coronary artery disease, hypertension or a related condition? If so, please specify the diagnosis (or diagnoses). b. If the examiner finds that the Veteran has a current diagnosis of heart disease, to include coronary artery disease, hypertension or a related condition, is it at least as likely as not (50 percent or greater probability): (i) that such condition had its onset during the Veteran's period of active duty from September 1958 to January 1963; or, (ii) that such disorder was caused by any incident or event that occurred during such periods (i.e. considering the findings of a heart murmur in service and the high blood pressure readings, the findings of a heart murmur within one year of discharge from active service and in April 1964 and the opinions furnished by the October 2004 VA examiner and August 2010 private physician)? Please note that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended relationship; "less likely" weighs against a causal relationship. Please answer the question posed with the use of "as likely", "more likely", or "less likely" language. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims file. 2. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. 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). _________________________________________________ DEBORAH W. SINGLETON 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).