Citation Nr: 1312927 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-44 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for heart disease. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran INTRODUCTION The Veteran had active service from October 1986 to February 1987 and from November 2002 to August 2003. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In that decision, the RO granted service connection for PTSD and assigned a 30 percent disability evaluation effective from April 30, 2009. The RO also denied service connection for heart disease. The Veteran presented testimony before the undersigned Veterans Law Judge during a videoconference hearing in February 2013. A transcript of that hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Veteran testified at his February 2013 hearing that he is in receipt of disability benefits from the Social Security Administration (SSA) based, in part, on his PTSD and heart disease. The evidence of record does not include a copy of the decision to grant benefits or the records upon which that decision was based. Under 38 U.S.C.A. § 5107(a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). When VA is put on notice of the existence of SSA records that may be relevant to a claim, as in this case, it must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493, 494 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Therefore, a remand is required so that these records may be obtained. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2)(3) (2012). With regard to the claim for service connection for heart disease, the Veteran does not contend, and the record does not show, that heart disease began during a period of active service. Rather, the Veteran has asserted that his heart disease manifested and was diagnosed prior to his second period of active service beginning in November 2002 and was permanently aggravated during that period of service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands--that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law. Accordingly, where the government fails to rebut the presumption of soundness under section 1111, the veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). In the present case, private medical evidence indicates that heart disease was diagnosed in 2000, and the Veteran underwent coronary artery stenting and an angioplasty in February 2000. During his February 2013 Board hearing, the Veteran asserted that he was treated for his heart condition in Iraq in 2002 and that he was treated and prescribed medication by a cardiologist at Walter Reed Army Medical Center (WRAMC) in 2003. However, the Veteran's service treatment records from his second period of active service beginning in 2002 appear to be incomplete. The only medical records in the claims file from that period of service are dated in May 2003 and show that the Veteran was evacuated from Kuwait to a hospital in Germany to be treated for a fractured wrist. Those records also note that he had been prescribed medications to control his blood pressure. However, there are simply no other records dated during his second period of service. As the records appear incomplete, the Board cannot determine at this time whether the Veteran's heart disease was noted upon entry to active service or whether he was treated for worsening of heart disease in service. On remand, the RO/AMC should attempt to locate additional service treatment records from the Veteran's active service in 2002 and 2003. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2)(3). In addition, the Board notes that the Veteran was afforded a VA examination in connection with his claim for service connection for heart disease in June 2010. The examiner was asked to opine whether it is "at least as likely as not" that the Veteran's heart disability was aggravated by his active service. The examiner diagnosed him with ischemic heart disease and opined that it was not aggravated by service because "active duty service does not aggravate coronary artery disease." The opinion provided in this case is inadequate because it fails to apply the proper standard of "clear and unmistakable evidence" to determine whether the Veteran's heart disorder existed prior to service and was permanently aggravated by service. A remand is therefore required in order to obtain an adequate medical opinion. 38 C.F.R. § 3.159(4). Lastly, the record currently includes treatment records from the VA New Jersey Health Care System dated from December 2009 to March 2010, but it is unclear as to whether there may be any ongoing treatment. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the RO/AMC should take this opportunity to secure any outstanding VA medical records. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran's unit, and any other appropriate location, to request the complete service treatment records for the Veteran's second period of service from November 2002 to August 2003. These efforts should include requesting clinical records documenting the any evaluation or treatment at Walter Reed Army Medical Center in 2003. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the RO/AMC should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action to be taken. 2. The RO/AMC should request a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. The RO/AMC should obtain any outstanding VA treatment records pertinent to the claims, including records dated from March 2010 to the present. All records and responses received should be associated with the claims file. 4. Thereafter, the RO/AMC should refer the Veteran's claims folder to the June 2010 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's current heart disease. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service personnel and treatment records, post-service medical records, and assertions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether the Veteran's current heart disease clearly and unmistakably preexisted his period of active duty service from November 2002 to August 2003. If so, he or she should state whether the preexisting disorder worsened in severity during service and whether the increase in severity was consistent with the natural progression of the disease or whether the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. If heart disease did not preexist service, the examiner should indicate when the disorder manifested and whether it is at least as likely as not that that the disorder is related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A complete rationale for any opinion expressed must be provided. 5. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Such development may include affording the Veteran a VA examination in connection with his claim for a higher initial evaluation for PTSD. 6. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals