Citation Nr: 1124124 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 10-08 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disorder, to include as secondary to his service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1962 to November 1970. His list of medals and badges includes the Combat Action Ribbon and Air Medal. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In his August 2009 notice of disagreement, the Veteran requested a hearing before a Decision Review Officer. A hearing was scheduled for January 13, 2009. However, in a statement received prior to his scheduled hearing, the Veteran submitted written notification indicating that he no longer wished to appear at a hearing before the RO. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2010). 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). VA Examination- The Veteran maintains that his heart disorder is secondary his service connected diabetes mellitus. Treatment records confirm that the Veteran has a diagnosis of non-ischemic cardiac myopathy. See December 2009 private treatment record. A May 2007 private treatment record noted a diagnosis of mild internal and common carotid stenosis bilaterally with moderate left external carotid stenosis. Establishing service connection on a secondary basis requires evidence that shows: (1) a current disability exists; (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board has reviewed a June 2009 VA examination undertaken to address the Veteran's secondary service connection claim. However, the Board finds that the medical examination does not contain sufficient detail to decide the claim on appeal. The Court has held that where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). Specifically, the June 2009 VA examiner concluded that the Veteran's service connected diabetes mellitus had not caused his nonischemic cardiomyopathy. Moreover, the examiner indicated that the Veteran's heart disorder was not worsened or increased by his diabetes. However, no rationale for the aggravation opinion was provided. The United States Court of Appeals for Veterans Claims (Court) has held that to have probative value, a medical examination submitted to the Board must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-1 (2008); see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusions with an analysis that can be considered and weighed against contrary opinions). Thus, on remand, the Veteran should be accorded a pertinent VA examination that provides such an opinion with supporting rationale. The Board has considered various medical opinions from the Veteran's private treating physician (S.J. Pollack) relating his heart disorder to his service connected diabetes mellitus. However, service connection cannot be established at this time based on these opinions. Although a January 2009 private treatment note indicated that the Veteran was diagnosed with cardiomyopathy secondary to a diabetes diagnosis in 2004, no rationale was provided. A December 2009 letter from the Veteran's private treating physician indicated that the Veteran had cardiomyopathy and diabetes, and it "certainly could be related to his diabetes." He opined that the Veteran may have diabetic cardiomyopathy. However, this speculative opinion cannot be used to establish the Veteran's claim. See Stegman v. Derwinski, 3 Vet. App. 228 (1992) (held that did little more than suggest a possibility that his illnesses might have been caused by service radiation exposure was insufficient to establish service connection). A subsequent December 2009 opinion indicated that the Veteran had cardiac myopathy (non-ischemic) secondary to diabetes. No rationale was provided. Another December 2009 opinion reflected that the Veteran has cardiomyopathy related to his diabetes; however, no rationale was provided. See also Nieves-Rodriguez v. Peake. On remand, the Veteran should be provided the opportunity to have Dr. Pollack supplement his earlier opinions. Social Security Administration- The Board notes that records in the claims file indicate that the Veteran may be in receipt of Social Security Administration (SSA) benefits. A September 2009 SSA inquiry by the RO indicated that the Veteran established entitlement in January 2006. A July 2009 SSA inquiry by the RO indicated that the Veteran had Title II but not Title XVI status. At his June 2009 VA examination the Veteran indicated that he was currently employed full time as a criminal justice coordinator. It is unclear whether the Veteran is in receipt of SSA benefits. VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Indeed, the Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). As it is unclear whether the Veteran is receiving disability, the Veteran should be contacted to determine whether there are potentially relevant documents. If the Veteran is in receipt of SSA benefits, these records must be obtained. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran to determine if he is in receipt of SSA disability benefits, and for what disabilities. If the Veteran is in receipt of SSA benefits, obtain SSA records, including the medical evidence used to determine disability eligibility. Any negative search result should be noted in the record. 2. The Veteran should be advised that the statements/opinions that he submitted from Dr. Pollack relating his heart disorder to his diabetes mellitus were deficient because of the lack of rationale or speculative nature of the opinions. He should be told that he may submit an addendum opinion from Dr. Pollack. 3. Following the development set forth in the Remand paragraphs above, return the Veteran's claims file to the examiner(s) who conducted his VA examination in June 2009, or to a qualified medical professional if any examiner(s) is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The examiner should review the Veteran's claims file and render an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's heart disorder is caused by, or aggravated by, his service-connected diabetes mellitus, or is at least as likely as not (a 50 percent probability or greater) casually related to service. The examiner should discuss the January and December 2009 private opinions. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the heart disorder (i.e., a baseline) before the onset of the aggravation. The examiner must provide a rationale for any opinion expressed. Citation or discussion of medical authority used in rendering any opinion would be helpful as well. If the examiner must resort to speculation to answer any question, he or she should so indicate and explain why it would be speculative to respond. 4. The RO should then readjudicate the claim, considering evidence added to the record after the February 2010 SOC. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review. 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. 2010). _________________________________________________ MICHAEL A. HERMAN 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) (2010).