Citation Nr: 1216183 Decision Date: 05/04/12 Archive Date: 05/10/12 DOCKET NO. 06-22 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for residuals of an injury to the long finger, right hand. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The appellant served with the Army National Guard on a period of active duty for training from January 1965 to May 1965. The appellant was then returned to State control as a member of the Army National Guard of Pennsylvania. He was discharged from the National Guard in October 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee, that denied the appellant's claims. In July 2010, the Board denied the appellant's claims for service connection for a heart disability and for residuals of an injury to the long finger, right hand. The appellant appealed the July 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2011, the Court granted a Joint Motion for Remand, filed by representatives for both parties, vacating the Board's decision denying the claims for service connection, and remanding the claims to the Board for further proceedings consistent with 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 In light of points raised in the parties' Joint Motion for Remand, and the Board's review of the claims file, further RO action in this appeal is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At the outset, the Board notes that with respect to the appellant's National Guard service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. In this case, the appellant contends that he is entitled to service connection for a heart disability and residuals of injury to the right hand long finger, as he believes that both of these current disabilities occurred in service during training with the National Guard. He reported that he enlisted in the Army National Guard for a period of 6 years, but then did not finish that period and was medically discharged in October 1969. He indicated that he had a heart attack during physical training in July 1969. He also indicated that he injured the long finger of his right hand and he had to be taken to a hospital to have stitches. In addition, the appellant noted that he currently suffers from heart disease and has a scar on the right hand long finger. A June 1969 private medical report notes that the appellant was referred after experiencing chest pain during a training run with the Pennsylvania Army National Guard. Chest pain of an undetermined cause, rule out coronary artery disease, was noted. Given the appellant's National Guard service, the RO should take appropriate action to verify all of the appellant's periods of ACDUTRA and INACDUTRA. The Board notes that the current record only reflects that the RO was able to verify that the Veteran served as a member of the Army National Guard from January 1965 to May 1965; no additional periods of active service were found. The Veteran submitted an Army National Guard discharge report reflecting discharge in October 1969. Pertinent to the current determination, there is no documentation that confirms if the appellant had any additional periods of ACDUTRA or INACDUTRA between 1965 and 1969. Such information is relevant because, according to his statements, the heart attack and finger injury occurred during a period of training with the Army National Guard. The Board believes that additional steps should be undertaken to determine if the Veteran had any additional periods of ACDUTRA or INACTDUTRA. In addition, any outstanding personnel record or records of treatment from the appellant's service with the Army National Guard should be obtained. Moreover, as pointed out in the Joint Motion, the record suggests that the appellant has current heart and right hand long finger disabilities. A September 2002 medical report from Rocky Top Medical Center notes a clinical impression of coronary artery disease. With respect to the injury to the long finger, the appellant has reported that he has residual scarring. As noted in the Joint Motion, the Court has held that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a service connection claim. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that a layperson is competent to offer testimony regarding symptoms capable of observation). VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) ; 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence 'indicates' that there 'may' be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Therefore, given that there is evidence of current disability as discussed above, if records received regarding the appellant's National Guard service confirm initial heart symptoms or long finger injury during a period of ACDUTRA or INACDUTRA, the appellant should be afforded a VA examination to determine whether any current heart or long finger disability had its onset in or is otherwise etiologically related to the appellant's ACDUTRA or INACDUTRA service. Also, to ensure that all due process requirements are met, the RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claims for service connection, notifying him that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2011). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the appellant's Army National Guard Unit, the State Adjutant General of Pennsylvania, and any other appropriate source to verify the appellant's periods of ACDUTRA and INACDUTRA and obtain any personnel records or records of treatment from the appellant's service with the Army National Guard. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 2. The RO should send to the appellant and his attorney a letter requesting that the appellant provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims for service connection that is not currently of record. The RO's letter should clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the appellant responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, and if an only if records received regarding the appellant's National Guard service confirms heart complaints or long finger injury during a period of ACDUTRA or INACDUTRA, the RO should arrange for the appellant to undergo VA examination by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the appellant's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current heart and residual right long finger disability(ies). Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service-specifically, to disease or injury incurred or aggravated during any period(s) of ACDUTRA or injury incurred or aggravated during any period(s) of INACDUTRA. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the appellant fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims for service connection for heart disability and residuals of injury to the long finger, right hand in light of pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim), and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the appellant and his attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is 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. 2011). _________________________________________________ MICHAEL MARTIN 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) (2011).