Citation Nr: 1217564 Decision Date: 05/16/12 Archive Date: 05/24/12 DOCKET NO. 04-15 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a heart disorder. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active service from June 1965 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), dated in March 2002 and March 2003, which denied service connection for posttraumatic stress disorder (PTSD) and a heart disorder. In September 2005, the Veteran testified at a personal video-conference hearing over which the undersigned Veterans Law Judge presided. A transcript of the hearing has been associated with the Veteran's claims folder. A January 2006 Board decision reopened the claim for service connection for a heart disorder and remanded that claim and the claim for service connection for PTSD for further evidentiary development. In December 2009, the Board granted service connection for PTSD and again remanded the issue of entitlement to service connection for a heart disorder. Regrettably, however, still further development of this claim is required. So the Board is again remanding it to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is requesting service connection for a heart disorder. In May 2009, he underwent VA examination, in order to obtain a nexus opinion regarding his clam for service connection. In December 2009, after reviewing the opinion, the Board found it inadequate for the purpose of adjudicating the case. The Board then remanded the case and requested another examination and opinion concerning the etiology of the diagnosed hypertension and coronary artery disease (CAD). Pursuant to the remand, a VA examination was conducted in January 2010. The phrasing of the examiner's opinion is confusing. The examiner stated, "As the Veteran was seen for chest pain in the Navy some 40 years ago and did not develop any evidence of even mild coronary artery disease until lately, it is at least as likely as not that the chest pain that he had while on active duty was not cardiac in origin and therefore his current coronary artery disease is not related to the chest pain he had while in the service." He goes on to state that, "His chest pain is not at all typical of angina and it has never responded to nitroglycerin and it has not changed significantly since he first noted chest pain some 40 years ago and this also makes it highly unlikely that it would be cardiovascular in origin." The examiner's statement that it is at least as likely as not that the chest pain the Veteran had while on active duty was not cardiac in origin can also be interpreted as indicating that it is at least as likely as not that the chest pain the Veteran had while on active duty was cardiac in origin. However, the examiner further stated that the Veteran's current coronary artery disease is not related to the chest pain he had while in the service, and that it is highly unlikely that the chest pain would be cardiovascular in origin. Clarification is required on remand. Additionally, in a June 2010 addendum this physician indicated that it was as least as likely as not that the Veteran's hypertension was related to elevated blood pressure readings noted in service. In turn, the RO granted service connection for hypertension in an October 2010 rating action. In light of the interrelationship between the Veteran's heart disorder and hypertension, the RO requested another addendum from the VA physician concerning whether the Veteran's heart disorder was secondary to hypertension, as service connection is permissible on a secondary basis for disability that is proximately due to, the result of, or chronically aggravated by a service-connected condition. 38 C.F.R. § 3.310(a) and (b). If so, he will be compensated for the degree of additional disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In an October 2010 supplemental statement, the physician only referred to the possible causes of the Veteran's heart disorder and concluded that the CAD was not related to the now service-connected hypertension. But, significantly, this examiner did not also comment on whether the hypertension has aggravated (meaning chronically worsened) the heart disorder, which, as mentioned, is an alternative basis for granting secondary service connection. So this additional opinion must be obtained before deciding this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. If he is still available, forward the claims file to the VA examiner that performed the January 2010 evaluation of the Veteran and ask that he submit an additional addendum statement. If the January 2010 examiner is not available, then another examiner should be asked to provide the opinion(s) requested below. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. The examiner is asked to provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not (50 percent probability or greater), that any currently diagnosed heart disorder had its clinical onset during active service or is related to any in-service disease or injury, to include the reported chest pains in May and October 1970. It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. The Board points out that the opinion on this matter provided in January 2010 was confusing as the examiner concluded both that "it is at least as likely as not that the chest pain that he had while on active duty was not cardiac in origin" and that it is "highly unlikely" that it was cardiovascular in origin. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not (50 percent probability or greater) that the Veteran's hypertension caused his heart disease. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not (50 percent probability or greater) that the Veteran's hypertension aggravated (meaning chronically worsened) his heart disease. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 3. Finally, readjudicate the claim on appeal. If the claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning the claims 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). _________________________________________________ P.M. DILORENZO 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).