Citation Nr: 1300477 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 03-02 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a cardiovascular disability. REPRESENTATION Appellant represented by: Darla J. Lilley, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran retired from active duty in May 1985 with over 22 years of active service. This matter comes before the Board of Veterans' Appeals (Board) from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied service connection for a cardiovascular disability. In March 2003, the Veteran testified before the Board at a hearing held at the RO. In August 2004, this matter was remanded by the Board for further development. In an April 2007 decision, the Board denied the Veteran's claim for service connection for a cardiovascular disability. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion for Remand, in an August 2008 Order, the Court remanded the claim for readjudication in accordance with the Joint Motion. In October 2009, the Board remanded the Veteran's claim for further development. In a September 2011 decision, the Board again denied the Veteran's claim. The Veteran appealed that Board decision to the Court. Pursuant to a Joint Motion for Remand, in a February 2012 Order, the Court remanded the claim for readjudication in accordance with the Joint Motion. The appeal is REMANDED to the RO. REMAND Additional development is needed prior to further disposition of the Veteran's claim. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012); Robinette v. Brown, 8 Vet. App. 69 (1995). The Veteran has been diagnosed with coronary atherosclerotic heart disease, but it remains unclear whether that disability had its onset in or is related to his period of service. The service medical records show that the Veteran was treated for complaints of chest pain in October 1980. Following a clinical evaluation and an EKG, which was within normal limits, gastritis was diagnosed. In November 1982, he was admitted to a service department hospital with complaints of chest pain of approximately one month duration with pain usually occurring when he was resting and lasting more than an hour. Physical examination and laboratory testing, to include an EKG and enzymes, were within normal limits, exclusive of mild tenderness under the left anterior fifth and sixth rib area. A cardiac stress test indicated a normal maximum heart rate. Costochondritis was the discharge diagnosis. When evaluated in May 1984 for further complaints of chest pain, it was noted that recent EKG and chest x-rays were negative. The Veteran's treating physician, in rendering a diagnostic impression that the Veteran had a probable increased risk for atherosclerotic heart disease, observed that the Veteran had a family history of myocardial infarctions, and that he was a heavy smoker. On March 1985 retirement examination, a clinical evaluation of the heart and vascular system found no abnormalities. Post-service medical records show that the Veteran was diagnosed with coronary atherosclerotic heart disease in November 1989. The Veteran had been referred for a thallium stress test but, because of severe right hip claudication, an oral Persantine thallium scan had to be performed and that was positive for marked inferior ischemia. Subsequent catheterization revealed a normal left system but a large right coronary artery with a 95 percent mid stenosis. In a November 1989 letter, the physician who performed the Persantine thallium scan noted that the Veteran developed significant right hip claudication at an early level of exercise without angina or EKG changes and, much to his surprise, the Veteran had a large ischemic defect involving the whole inferior and lateral wall of the heart. In an April 2003 letter, the Veteran's private physician reported viewing the Veteran's service medical records which indicated that on several occasions the Veteran presented with complaints of atypical chest pain, the symptoms of which were similar to what he presented with when coronary disease was diagnosed objectively. The physician opined that the Veteran's chest pain at that time could have been related to coronary artery disease, although it was never diagnosed objectively while on active duty. In August 2004, the Board remanded the claim for a VA examination and opinion as to whether it is as likely as not that any diagnosed cardiovascular disability had its origin during active service or was otherwise related to service. The examiner was also requested to consider the April 2003 private opinion. Pursuant to the Board's August 2004 remand, the Veteran was afforded a VA cardiology examination in August 2006, at which time the Veteran was diagnosed with a history of arteriosclerotic heart disease, status post several myocardial infarctions, and multiple other medical problems. The examiner opined that the Veteran started experiencing occasional episodes of severe chest pain during service and that the pathology of his illness had likely began during his thirties, considering his family history of heart disease. However, the examiner did not discuss whether the Veteran's coronary heart disease was related to his period of active service, as the Veteran was on active service when in his thirties, nor did the examiner discuss the April 2003 private opinion. Accordingly, in October 2009, the Board again remanded the claim for a VA examiner to discuss the April 2003 private opinion and to opine as to whether the Veteran's cardiovascular disability was related to service. Pursuant to that remand, in November 2009, the Veteran was afforded a VA respiratory diseases examination, at which time the Veteran's claims file was unavailable. The Veteran complained of chest pain at rest intermittently with an unpredictable pattern. Risks for coronary artery disease included a nearly 50-pack year smoking history, hypertension, and elevated cholesterol. He was diagnosed with atherosclerotic coronary artery disease with three myocardial infarctions and percutaneous interventions that the examiner opined was at least as likely as not caused by or a result of military service. However, that opinion was unsupported by any rationale. In December 2009, the Veteran was afforded a VA heart examination from the November 2009 VA examiner, who conducted a full review of the claims file and clarified that the prior opinion had been misstated and indicated that it was not her opinion. The examiner noted that objective data available during service included a quality exercise stress test which did not reveal any significant abnormality or indicate a diagnosis of atherosclerotic coronary artery disease, and none of the evaluations for chest pain and myocardial infarction revealed a diagnosis of coronary artery disease during service or within a year of discharge. The examiner opined that the Veteran's cardiovascular ischemic heart disease and atherosclerotic coronary artery disease were less likely than not related to his complaints of chest pain during active service, based on the rationale that the disease was not diagnosed during or within one year of his discharge from service. However, the examiner did not discuss the November 1989 letter, in which the private physician noted that the Veteran developed significant right hip claudication at an early level of exercise without angina or EKG changes and, much to his surprise, the Veteran had a large ischemic defect involving the whole inferior and lateral wall of the heart. As it remains unclear to the Board whether the Veteran's cardiovascular disability had its onset in or is related to his period of active service, the Board finds that a remand for an additional examination and opinion is necessary in order to fairly decide the merits of the Veteran's claim. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine whether there is any relationship between any current cardiovascular disability and his period of active service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cardiovascular disability had its onset in or is related to service, to include the complaints and treatment for chest pain. In rendering the opinion, the examiner must consider and discuss the November 1989 and April 2003 statements from the Veteran's private physicians. The examiner must also consider lay statements regarding in-service occurrence of an injury. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). The rationale for all opinions expressed should be provided. The examiner should review the claims folder and the examination report should note that review. 2. Then, readjudicate the claim. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. 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 or 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. 2012). _________________________________________________ Harvey P. Roberts 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) (2012).