Citation Nr: 1127580 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 08-05 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cardiovascular disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. C. Schingle, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. For the reasons set forth below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary to adjudicate the issue on appeal. In this case, the Veteran contends that he has a current cardiovascular disorder that is related to service. In this regard, he reports experiencing heart palpitations, chest pains, and dizziness in service. He also describes intermittent symptoms during service and continued symptomatology since discharge. The Board notes that the Veteran is competent to attest to conditions of his service which are readily observable to a lay person. See 38 U.S.C.A. § 1154(a); Washington v. Nicholson, 19 Vet. App. 362 (2005). A review of the service treatment records shows multiple pertinent treatment records. Records from 1966 and 1972 show treatment for chest pains, dizziness and a rapid heart rate. A June 1982 medical examination report noted a history of shortness of breath and pounding heart beginning in 1968 with some current shortness of breath. Post-service private treatment records dated in March 1997 show treatment for and a diagnosis of cardiomypathy and minimal coronary artery disease. Significantly, however, subsequent medical evidence of record reflects only diagnoses of cardiomyopathy. No mention is made in these reports of coronary artery disease. The Board notes that no pertinent VA examination has been afforded the Veteran in this case. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. An examination or opinion is necessary if the evidence of record: (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (2) establishes that the claimant suffered an event, injury or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 79. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Based on the evidence as noted above, including the pertinent in-service and post-service findings as well as the Veteran's competent testimony of observable symptoms since service, the Board finds that a VA examination is necessary. The purpose of the examination is to determine the Veteran's complete cardiovascular disability picture and to determine the etiology of such diagnosed disorder. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2008) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. As this case presents certain medical questions which cannot be answered by the Board, a VA examination must be conducted. See Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. See also 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any of cardiovascular disorder diagnosed on evaluation. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2010).) The claims folder should be made available to and reviewed by the examiner. The examination report should state that the claims folder has been reviewed. All necessary tests, including X-rays, should be performed. The examiner should list any and all cardiovascular disorders diagnosed on examination. In particular, the examiner should specifically state whether a diagnosis of coronary artery disease is appropriate. Also, for any cardiovascular disorder other than coronary artery disease diagnosed on examination, the examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability had its clinical onset in service, or is otherwise related to the Veteran's active duty. In addressing this question, the examiner should note and discuss the pertinent inservice findings as well as the Veteran's competent reports of continuing relevant symptoms since service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is less than 50 percent likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a thorough and complete rationale for all opinions provided in the examination report. 2. After completion of the above and any additional development of the evidence deemed necessary, readjudicate the issue of entitlement to service connection for a cardiovascular disorder. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2009). He has the right to submit additional evidence and argument on the matter that 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).