Citation Nr: 1305865 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 10-11 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for coronary artery disease, to include as due to a service-connected disorder. 2. Entitlement to service connection for hypertension, to include as due to a service-connected disorder. 3. Entitlement to service connection for diabetes mellitus, type II, to include as due to a service-connected disorder. 4. Entitlement to service connection for a psychiatric disorder, to include anxiety and depression, to include as due to a service-connected disorder. REPRESENTATION Appellant represented by: James G. Fausone, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to May 1976. He also had unverified periods of service in the Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appeal is remanded to the RO. REMAND Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board previously remanded the claims for VA to contact the Veteran and provide him an opportunity to identify all non-VA medical providers, to include all treatment from Dr. P.R.D., and to attempt to obtain copies of the related medical records. The Veteran submitted a VA Form 21-4142 in June 2011, which provided the requisite information in order for VA to obtain records from the aforementioned private medical provider. No action was undertaken obtain records from Dr. P.R.D. This must be rectified on remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded the claims to schedule the Veteran for appropriate VA examinations and to obtain adequate opinions regarding the etiology of the Veteran's current disorders. Specific instructions by the Board were given to the VA examiners; however, none of the examiners adhered to these instructions. More specifically, the examiners relied upon the absence of documentation in the service treatment records and post-service medical records, rather than the Veteran's competent assertions in regards to each claim, as ordered by the Board. In addition, there was no effort to ensure that the opinions obtained were in complete compliance with the orders of the remand and/or to implement corrective procedures, also as directed by the Board. These deficiencies must be rectified on remand by returning the evidence of record to the appropriate VA examiners for an addendum opinion. Moreover, given the fact that records from the Social Security Administration were obtained and the Veteran submitted additional private treatment records after the VA examinations were conducted, the VA examiners did not have the complete record upon which to base an informed opinion. As the claims are being remanded for the foregoing reasons, the Board finds that efforts should be made to verify the Veteran's service in the Reserves; to obtain outstanding VA treatment records from the Durham VA Medical Center (VAMC) dated since January 2009; and to obtain current treatment records from the VAMC in Richmond. In regards to his Reserve service, the Veteran reported service from June 1977 to June 1978; he has reported serving as a scout platoon in the 119th Infantry Unit located at 813 East 14th Street, Roanoke Rapids, North Carolina, 27870; a VA Form 3101 indicates that the Veteran had Reserve service between May 1976 and September 1976; and service personnel records indicate that the Veteran was discharged by the Air Force on September 30, 1976 and by the Army on June 11, 1978. In addition to the foregoing, another attempt to obtain records from the Durham VAMC dated prior to September 8, 2004 should also be made, as a March 2007 mental health record from this facility reports that the Veteran had been receiving VA care from the facility since 1993. Accordingly, the case is remanded for the following action: 1. The RO must attempt to verify the dates and type of the Veteran's service in the Air Force and Army Reserves from all appropriate sources. Complete copies of the Veteran's service treatment records, to include any clinical records, and service personnel records, must also be obtained for any Reserve service. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 2. The RO must attempt to procure copies of all records from Dr. P.R.D., as identified on VA Form 21-4142, received in June 2011; all pertinent treatment records from the Durham VAMC dated from 1993 through September 8, 2004, and since 2009; and all pertinent treatment records from the Richmond VAMC since August 2011. All attempts to secure this evidence must be documented in the claims file by the RO. If any VA treatment records are in a retired or archived status, efforts must be made to acquire the records. If, after making reasonable efforts to obtain the above records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 3. After the foregoing development has been completed, the claims file and all records on Virtual VA must be made available to the examiner that conducted the August 2011 artery and vein, and diabetes mellitus examination (or another medical professional, if such examiner is unavailable) for an addendum opinion. The examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must state whether the Veteran's currently diagnosed hypertension, coronary artery disease, and diabetes mellitus, type II, were incurred in or aggravated by his active duty service. In providing the opinions, the examiner must specifically address the Veteran's assertions that his coronary artery disease, hypertension, and diabetes mellitus, type II, are the result of stress caused by his duties both while on active duty and in the Reserves. In regards to the claims for coronary artery disease and hypertension, the examiner must specifically address the Veteran's competent assertions that he had problems with high blood pressure/hypertension since the 1970s, and that he had chest pains beginning in 1978 (approximately two years after his discharge from active duty and potentially during Reserve service). The examiner is reminded that the Veteran is competent to report symptoms even in the absence of documentation in the service treatment records and in the post-service medical record. The examiner must also specifically address whether the in-service blood pressure readings are sufficient to establish hypertension. The examiner must also provide opinions as to: (a) whether the Veteran's current hypertension is related to his current psychiatric disorders, coronary artery disease, or diabetes mellitus, type II; (b) whether his current coronary artery disease is related to his current psychiatric disorders, hypertension, or diabetes mellitus, type II; and (c) whether his current diabetes mellitus, type II, is related to his current coronary artery disease, hypertension, or psychiatric disorders. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The claims file and all records on Virtual VA must be made available to the examiner that conducted the August 2011 mental examination (or another medical professional, if such examiner is unavailable) for an addendum opinion. The examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must state whether the Veteran's currently diagnosed generalized anxiety disorder was incurred in or aggravated by his active duty service, to include the reported stress caused by his duties both while on active duty and in the Reserves. The examiner is reminded that the Veteran is competent to report symptoms even in the absence of documentation in the service treatment records and in the post-service medical record. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 5. After the development requested has been completed, the RO must review the addendum examination reports to ensure that they are in complete compliance with the directives of this Remand. If the reports are deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If the issues on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).