Citation Nr: 1307166 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 08-12 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1969. The appellant is the Veteran's surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant testified before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant seeks service connection for the cause of the Veteran's death. The Veteran is noted to have died in June 1985. The death certificate shows his immediate cause of death was coronary sclerosis due to hypertensive arteriosclerotic heart disease. A coroner's report is also of record and reflects that an autopsy was performed. The provisional pathologic diagnoses were hypertensive arteriosclerotic heart disease; remote myocardial infarction; cardiomegaly; severe coronary sclerosis; and pulmonary edema and congestion, severe. Service treatment records show the Veteran was diagnosed with acute viral hepatitis in March 1969. Clinical notes from his six-week hospitalization also reflect several instances of elevated blood pressure readings. At the time of separation from service in April 1969, his separation physical examination showed he reported having occasional mild chest pain ever since his episode of hepatitis. The appellant reports that after service, the Veteran sought treatment for chest pain at the Outpatient Treatment Clinic (OPC) in Philadelphia, Pennsylvania (PA), in September 1969 and in November 1969, but was only given medication for hepatitis. She further reports that the Veteran was informed he was ineligible for VA outpatient treatment and thus his heart disease went undetected. The appellant has raised two main contentions in support of her claim. First, she contends that the cardiovascular disease which caused the Veteran's death began during service or manifested within one year of discharge. She argues that the Veteran's chest pain complaints and elevated blood pressure readings during service and, his continued chest pain right after discharge, support such a finding. She also argues that his chest pain was misdiagnosed as related to hepatitis, but it was in fact a manifestation of heart disease. To this end, she notes that the Veteran suffered a heart attack in December 1969, only months after discharge. Second, the appellant contends that the acute viral hepatitis, which was diagnosed and treated in service (and for which the Veteran was service-connected), either directly caused his cardiovascular disease, or aggravated his underlying cardiovascular disease. It is also asserted that medications prescribed for the hepatitis aggravated his cardiovascular disease and contributed to his death. In support of this contention, she has submitted articles from internet resources which discuss an association between hepatitis and an increased risk of cardiovascular disease. Records from the Philadelphia, PA OPC are not in the claims file and it does not appear that the AOJ ever attempted to locate them. There is a duty to obtain these records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The appellant has also indicated that the Veteran received treatment from a private cardiologist, Dr. Carvahal in 1969. She stated that Dr. Carvahal told her he recalls treating the Veteran, but could not submit a letter to that effect because he no longer has the pertinent medical records. On remand, the AOJ should obtain authorization from the appellant so VA can request records from this physician; or, if the records are unavailable, at least a letter confirming past treatment of the Veteran in 1969. Finally, after any outstanding VA and/or private treatment records are associated with the claims folder, a medical opinion as to the cause of the Veteran's death must be obtained, to include any possible relationship between the Veteran's service-connected hepatitis C (or medication prescribed therefor) and the cause of his death. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she identify any and all outstanding private treatment records related to the Veteran's service-connected hepatitis disability, and his nonservice-connected cardiovascular disease. Thereafter, request that the appellant provide (or authorize VA to obtain) these records, and in particular those from Dr. Carvahal. Any correspondence sent to Dr. Carvahal should indicate that in the event the requested records are unavailable, he should state whether he in fact recalls treating the Veteran, and for what condition; and, to the best of his recollection, the year(s) he provided such treatment. Obtain any and all treatment records from the VA OPC in Philadelphia, PA, dated from September 1969 to June 1985, and associate these records with the claims file. Document all requests and responses for these records. All reasonable attempts should be made to obtain the requested private and VA records. If any of these records cannot be obtained after reasonable efforts have been exhausted, issue a formal determination that such records do not exist and that further efforts to obtain them would be futile. That formal finding should be documented in the claims folder. The appellant should also be personally notified of that formal finding and allowed the opportunity to provide any additional pertinent records in her possession. 2. After the above development has been completed, send the claims file to a cardiologist or other appropriate examiner for a medical opinion. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is asked to state whether it is at least as likely as not that: a) The Veteran's service-connected hepatitis (to include medication prescribed for hepatitis) caused or contributed to the cause of his death (e.g. hastened death or rendered him less capable of resisting the conditions that caused death); b) The Veteran's cause of death, listed as coronary sclerosis due to hypertensive arteriosclerotic heart disease, had onset in service; was initially manifested within a year of service discharge; and/or is otherwise etiologically related to his period of military service. All findings, along with a fully articulated medical rationale for the opinion, must be set forth in the examination report. Any opinion expressed must be reconciled with the pertinent evidence of record, including the appellant's testimony and lay statements regarding the onset and continuity of the Veteran's chest pain, his reported heart attack in December 1969 and, the internet articles of record that discuss an association between hepatitis and an increased risk of cardiovascular disease. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is further advised that the appellant is competent to report her observations of the Veteran's symptoms and treatment, and such reports must be considered in formulating any opinions. 3. After completing any additional necessary development, the issue on appeal should be readjudicated. If the claim remains denied, the appellant and her representative should be provided with a supplemental statement of the case and given a reasonable period in which to respond before the claim is returned to the Board. The appellant 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). _________________________________________________ C. CRAWFORD 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).