Citation Nr: 1126889 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 07-31 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a heart disorder, to include angina and arteriosclerotic heart disease. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1967 to August 1969, after which point he entered the Army Reserve. He served on active duty from September 1981 to February 1989 in the Army Reserve with periodic periods of active duty for training (ACTDUTRA) and inactive duty training (INACTDUTRA) thereafter. The claim on appeal originates from one such period in December 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for angina. The Veteran timely appealed that decision. The Veteran testified in a videoconference hearing before the undersigned Acting Veterans Law Judge in March 2009 from Hartford, Connecticut; a transcript of that hearing is associated with the claims file. This case was initially before the Board in June 2009, when it denied entitlement to service connection for angina. The Veteran timely appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, the Veteran and the Secretary of VA jointly agreed to remand the case back to the Board. In a July 2010 Court order, the Court ordered that the case be remanded back to the Board for further development. This case has been returned to the Board at this time in compliance with the July 2010 Court order. 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 record reflects that the Veteran had a myocardial infarction in 1997 which resulted in an angioplasty in July 1997. Such was specifically noted as a pre-existing condition in a November 1998 service examination prior to the Veteran's period during which the incident took place. The Board finds that such records from the 1997 incident are relevant to this claim, and thus should be obtained on remand. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2010). Additionally, as noted in the Joint Motion for Remand, the Board finds that the line of duty investigation report and the underlying medical documents relied upon are relevant in this case. Thus, the Board finds that such documents should be obtained on remand. See Id. Further, the line of duty report of record indicates that the Veteran's unstable angina was service aggravated; however, that report additionally notes that the disability appeared to be temporary in nature. The VA examination report from October 2007 does not address this fact, nor does it address the August 2007 letter from the Veteran's private physician. In light of these discrepancies, as well as the potentially new records being obtained on remand, the Board finds that the Veteran should be afforded a new examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Finally, it must be noted that the record before the Board shows that the Veteran has designated the Connecticut Department of Veterans Affairs as his representative before VA. See VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, signed and dated by the Veteran in March 2007. When the case was before the Court, the Veteran was represented by a private attorney. In a June 2011 letter to the Board, the private attorney stated she was representing the Veteran. There is nothing in the claims file showing that the Veteran has designated the private attorney as his representative before VA. Just because the private attorney represented the Veteran at the Court level does not mean that she represents him at the Board level. Thus, if the Veteran would like to designate the private attorney as his representative, he should complete a VA Form 21-22a, Appointment of Individual as Claimant's Representative. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any VA or private treatment that he may have had for his heart condition since January 1995, particularly for the period of January 1995 through December 1999, including the hospital records for the myocardial infarction and subsequent angioplasty in July 1997. The Veteran must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. See 38 C.F.R. § 3.159(c)(1)(i) and (ii). Additionally, attach a VA Form 21-22a to the letter to the Veteran and tell him that if he wants the private attorney, whose initials are WWZ, to represent him, he should complete the attached form and send it to VA. After securing the necessary release forms, attempt to obtain and associate those identified records with the claims file. If those identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be so notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain from the Department of the Army the records pertinent to the Veteran's line of duty investigation for the December 1998 incident of heart complications during training and the medical records relied upon in creating that report. Any negative search should be noted in the record and communicated to the Veteran. Additionally, in the event of a negative search, if it is determined that additional research requests would be futile, then a memorandum of unavailability should be drafted and added to the record. 3. Following the completion of the above to the extent possible, schedule the Veteran for a VA heart examination with a cardiology specialist in order to determine whether the Veteran's heart condition, including angina and arteriosclerotic heart disease, was aggravated by his military service in December 1998. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including x-rays, should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should state any diagnosis of any cardiac condition found, including angina and arteriosclerotic heart disease, found. The examiner should then take as conclusive fact that the Veteran's heart condition pre-existed military service in December 1998, as specifically demonstrated by the November 1998 service examination. The examiner should then opine as to whether the Veteran's heart disorder more likely, less likely or at least as likely as not (50 percent or greater probability) was permanently aggravated during military service beyond the normal progression of that disease process. The examiner should specifically discuss the line of duty report's finding both that the condition was service aggravated and was temporary. The examiner should also discuss the apparent inconsistency of the October 2007 examiner's opinion which stated that no aggravation occurred but that such military service may have accelerated the onset of symptomatology. Finally, the examiner should discuss the January 1999 operation report which demonstrated that the Veteran had quadruple bypass approximately one month after the incident, and the August 2007 letter from the private physician indicating that the Veteran's heart condition was aggravated by service. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for a heart disorder, to include angina and arteriosclerotic heart disease. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. 2011). _________________________________________________ Alexandra P. Simpson 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) (2010).