Citation Nr: 1313558 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 05-25 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a residual disability due to heat stroke. 2. Entitlement to service connection for cardiovascular disease, to include hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to December 1972. This matter came to the Board of Veterans' Appeals (Board) from a November 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied service connection for hypertension and heat stroke. The Board remanded the claims for additional development in July 2007 and September 2008. In a July 2009 decision, the Board denied entitlement to service connection for a residual disability due to heat stroke, and entitlement to service connection for a cardiovascular disease, to include hypertension. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a May 2010 Joint Motion for Remand (JMR) and a May 2010 Court Order, the decision was vacated and remanded for further development consistent with the JMR. The Board remanded the claim for additional development in October 2010 and July 2012. In a February 2013 statement, a private physician indicated that the Veteran has hearing loss and tinnitus that is at least in part attributable to his military service. The Veteran has not sought service connection for hearing loss and tinnitus. The matter is referred to the RO via the Appeals Management Center (AMC) for any clarification or development deemed appropriate. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a residual disability due to heat stroke and also for cardiovascular disease, to include hypertension. He maintains that he was hospitalized for a massive heat stroke in 1972, at an Army hospital located in Panama. These claims have been remanded multiple times, primarily in an attempt to locate records of the Veteran's reported hospitalization for heat stroke in 1972. Unfortunately, yet another remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. In previous statements the Veteran indicated that he was hospitalized at the "Ft. WM. D. Davis Hospital" or at the Gorgas Army Hospital in operation at Fort Clayton in the Panama Canal Zone. Pursuant to the JMR and October 2010 Board remand, the Appeals Management Center (AMC) sent a request to the National Personnel Records Center (NPRC) in January 2011 to locate clinical records from January 1972 to December 1972, at "Ft. WM. D. Davis Hospital" and the Gorgas Army Clinic/Hospital. NPRC responded that there was no listing in the NPRC index for the U.S. Army Troop Medical Center, Ft. WM. D. Davis Hospital for 1972, or the Gorgas Army Clinic/Hospital for 1972. The AMC also obtained a consular information sheet from the U.S. Embassy in Panama which indicated that records from the Gorgas Army Community Hospital, as well as the Coco Solo Hospital, are maintained by the National Archives and Records Administration (NARA). A follow-up request for the Veteran's records was sent to NARA by the AMC, and in February 2011 NARA responded that the information sought was not in the custody of its holdings. In a statement received in February 2013, the Veteran now indicates that he is certain he was treated in the Fort Davis area, on the Atlantic side of Panama. He denies any recollection of where he was taken, but states that there are only three facilities in that area where he could have been treated. These three facilities were the Coco Solo Hospital, the Fort Gulick Clinic, or the "Company A" Infirmary. He avers that VA has been conducting searches for in-patient treatment records "on the Pacific side of Panama" which is not where he was treated. VA regulations provide that VA will make as many requests as are necessary to obtain relevant records from a federal department or agency. These regulations also instruct that VA will end such efforts only if it concludes that the records sought do not exist, or that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2). As the Veteran has identified new military medical facilities where he may have been treated for heat stroke in service, the Board finds that all efforts to obtain said records have not been exhausted. The Board has no choice but to remand the claim yet again to ensure that VA has met its duty to assist the Veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements. Additionally, in February 2013, the Veteran's private physician reiterated that the Veteran suffered a heat stroke in Panama, and since that time, he has had palpitations and hypertension and an ablation of the nerves of the heart that control the arrhythmias. While a VA examination was conducted in March 2011, the Board finds that another VA examination is needed to identify the Veteran's residuals of a stroke, if present, and hypertension and to determine the etiology of those disabilities. Accordingly, the case is REMANDED for the following action: 1. Request that NARA provide any and all records of clinical/hospital treatment (in and out-patient) of the Veteran, dated between January 1972 and December 1972, from the Coco Solo Hospital in the Panama Canal Zone. 2. Request that NARA, NPRC, or other appropriate source, provide any and all records of any clinical/hospital treatment (in and out-patient) of the Veteran, dated between January 1972 and December 1972, from the Fort Gulick Clinic (also referred to as the 368th Station Hospital, Fort Gulick) and the Company A Infirmary in the Panama Canal Zone. 3. All attempts to obtain these records must be documented in the claims folder. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. If the requested records cannot be located or no such records exist, the AMC must notify the Veteran of: a) the specific records the AMC is unable to obtain; (b) the efforts made to obtain those records; and (c) any further action to be taken by the AMC with respect to the claim. The Veteran must then be given an opportunity to respond. 4. After completing the above items numbered 1 through 3, schedule the Veteran for a VA examination with a cardiologist or physician with the appropriate expertise. The claims folder should be made available to and reviewed by the examiner. Any medically indicated tests should be accomplished, and all test and clinical findings should be clearly reported. After reviewing the claims file and examining the Veteran, the examiner should opine as to the following: a) Identify whether the Veteran has a residual disability due to heat stroke, and identify all disabilities associated with the cardiovascular system; b) Did any residual disability due to heat stroke at least as likely as not (a 50% or higher degree of probability) have its clinical onset during the Veteran's period of service, or is any residual disability due to heat stroke otherwise related to such period of service; c) Did any current disability of the cardiovascular system, to include any hypertension or coronary artery disease, at least as likely as not (a 50% or higher degree of probability) have its clinical onset during the Veteran's period of service, or is any disability of the cardiovascular system, to include any hypertension or coronary artery disease, otherwise related to such period of service. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinions with the service treatment records, post-service medical evidence, and lay statements of the Veteran, to include his competent reports of symptomatology during and after service. The examiner should also reconcile the opinions rendered by the VA examiner in February 2011 and the private physician, W.C., M.D., rendered in October 2005 and in February 2013. 5. After the addition of any new evidence, review the expanded record and readjudicate the claims. If either of the benefits sought are not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). _________________________________________________ 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).