Citation Nr: 1306433 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 07-01 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a cardiovascular disorder other than coronary artery disease and essential hypertension, to include as secondary to shell fragment wound residuals and/or essential hypertension. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to February 1969, with service in the Republic of Vietnam from January 1968 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board observes that the Veteran moved to Michigan during the pendency of this matter, and the Detroit, Michigan, RO now has jurisdiction over the appeal. The Veteran participated in a hearing before a Decision Review Officer in January 2008. He was also afforded a videoconference hearing before the undersigned in May 2009. Transcripts of both proceedings are of record. In September 2009 and November 2011, the Board remanded the appeal for additional development. Although the Veteran has claimed service connection for endocarditis, the scope of a claim may include other diagnoses that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the issue of entitlement to service connection for hypertension was separately adjudicated and denied in the March 2006 rating decision, and the Veteran did not timely disagree with that denial despite filing a notice of disagreement with the contemporaneous, yet separately adjudicated, claim for endocarditis. Therefore, hypertension is excluded from the appeal before the Board. See Clemons, 23 Vet. App. at 8-9 (distinguishing Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008) and Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996)). Additionally, the Veteran was awarded service connection for coronary artery disease during the course of the appeal and, consequently, this aspect of his claim has been granted in full and is likewise not contemplated in the current appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Lastly, correspondence from the Veteran reflects his contention that his cardiovascular disorder is secondary to his shrapnel wound to the right leg. See September 2008 E-mail. Thus, the issue has been modified as reflected on the first page of this decision. 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 While further delay is regrettable, the Board finds that additional development is required prior to adjudicating the Veteran's claim. First, in September 2009, the Board remanded this appeal in part so that records from the Dallas VA Medical Center (VAMC) could be requested. Specifically, the Board explained: The RO requested treatment information from the Dallas VA Medical Center (VAMC) and received correspondence in May 2005. The correspondence noted that there was no treatment information in the 1980s; however, there were current records dated in 2004 to 2005. There is no indication that the RO attempted to obtain the current records from the Dallas VAMC. In addition, the Veteran's representative specifically requested that the treatment records from the Dallas VAMC be associated with the Veteran's claims file. On remand, in October 2009, two pages were printed from the Dallas VAMC regarding a no-show for an October 2008 appointment. However, no other records from the Dallas VAMC were obtained pursuant to the September 2009 remand despite other indicators that the Veteran was treated at the Dallas VAMC prior to moving to Michigan. See, e.g. November 2008 VA treatment record from Battle Creek VAMC (stating that the Veteran "was seen in VA in [T]exas" and relating the Veteran's history of coronary artery disease, myocardial infarction, diabetes, and hypertension "[p]er records from [T]exas VA." Thus, upon remand, outstanding and potentially relevant treatment records from the Dallas VAMC must be associated with the paper or electronic claims files. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders). Second, the evidence portion of the May 2011 rating decision granting service connection for coronary artery disease lists some additional evidence that is not in the record, namely: (1) a medical opinion, VA Medical Center Battle Creek, dated March 16, 2011; (2) a VA examination, VA Medical Center Battle Creek, dated May 19, 2010; and (3) outpatient treatment reports, VA Medical Center Battle Creek, received October 6, 2009 and December 23, 2009. These records should also be associated with the paper or electronic claims files on remand. Finally, any records of VA treatment dated after September 2009 should be associated with the paper or electronic claims files on remand. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the paper or electronic claims files treatment records from the Dallas VAMC (namely, records prior to the Veteran's move to Michigan in November 2008, including treatment records dated in 2004 and 2005 as noted in May 2005 E-mail of record). All attempts to secure these records must be documented in the record. If any records are not available, the Veteran should be provided with notification of their unavailability in accordance with 38 C.F.R. § 3.159(e)(1). 2. Obtain and associate with the paper or electronic claims files any treatment records from the Battle Creek VAMC dated since September 2009. 3. Associate with the paper or electronic claims files the following evidence referenced in the May 2011 rating decision: (a) Medical opinion, VA Medical Center Battle Creek, dated March 16, 2011; (b) VA examination, VA Medical Center Battle Creek, dated May 19, 2010; and (c) Outpatient treatment reports, VA Medical Center Battle Creek, received October 6, 2009 and December 23, 2009. If any of these records are not available, the Veteran should be provided with notification of their unavailability in accordance with 38 C.F.R. § 3.159(e)(1). 4. Thereafter, readjudicate the issue of entitlement to service connection for a cardiovascular disorder other than coronary artery disease and essential hypertension, to include as secondary to shell fragment wound residuals and/or essential hypertension. If the benefit sought on appeal remains denied, in whole or in part, the Veteran should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ Sonnet Gorham 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) (2012).