Citation Nr: 1314119 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 03-01 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for coronary artery disease and the residuals of a myocardial infarction, to include as secondary to a service-connected paralysis of the left hemi diaphragm with chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Barbara L. Kuhl, Attorney WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to November 1973. This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board remanded the claim for further development in June 2005, October 2006, November 2008, January 2010, March 2012, and October 2012. The case has since been returned to the Board for appellate review. In February 2005, the Veteran testified at a videoconference hearing before the Board, and in August 2008, July 2009, and July 2012, he testified before the Board at hearings held at the RO. However, the Veterans Law Judge who conducted the February 2005 hearing and the Acting Veterans Law Judge who conducted the July 2009 hearing have since retired. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal and that the matter will be decided by a three member panel of Veterans Law Judges. See 38 U.S.C.A. § 7102; 38 C.F.R. § 20.707. The United States Court of Appeals for Veterans Claims (Court) held that a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2012). Pursuant to the Court's holding in Arneson, a letter was sent to the Veteran in August 2012 notifying him that he had the option of having a third hearing with a Veterans Law Judge who would be assigned to the panel to decide his appeal. After the Veteran requested a third hearing, he was scheduled for a Board hearing in January 2013. However, in December 2012, the Veteran's attorney requested that the hearing be cancelled and asked that the panel proceed immediately with consideration of his appeal. Two of the three undersigned Veterans Law Judges presided over the August 2008 and July 2012 hearings. A review of the Virtual VA paperless claims processing system reveals VA treatment records dated from 2005 to 2013. Other documents in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran has contended that his coronary artery disease and residuals of a myocardial infarction are related to his military service. In the alternative, he has claimed that the disorder is secondary to his service-connected paralysis of the left hemi diaphragm with chronic obstructive pulmonary disease (COPD). In July 2012, the Veteran testified that he was given nitroglycerin for his heart condition during service, and his attorney asserted that there may be missing service records, as the available service treatment records do not show that the Veteran was treated with nitroglycerin. In August 1984, the Veteran did submit in-service hospital records from Ireland Army Hospital in Fort Knox, Kentucky, which pertained to his lung disorder. Those records were not included in the service treatment records provided by the service department, and it does not appear that the RO has made any attempt to obtain any clinical records. Thus, it is unclear whether there may be any other outstanding service records. Therefore, additional efforts should be undertaken to attempt to obtain any additional service-related records, including any in-service hospital records. Moreover, in July 2009, the Veteran's attorney requested that 34 pages of VA medical records dated from June 29, 2009, to July 1, 2009, be obtained from the VA Medical Center in Pittsburgh, Pennsylvania. Similarly, in August 2011, the Veteran's attorney requested that 83 pages of VA medical records dated from July 14, 2009, to July 22, 2011, be requested from the same facility. While the claims folder and Virtual VA file do contain some records dated during those time periods, it appears that not all the records have been obtained, as there are fewer pages than identified by the Veteran's attorney. 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 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek such records. 38 C.F.R. § 3.159(c). Therefore, an attempt should be made to obtain and associate any outstanding VA medical records with the file. In addition, there are two VA medical opinions dated in February 2009 and June 2010 that do not adequately address whether the Veteran's service-connected paralysis of the left hemi diaphragm with COPD aggravated his coronary artery disease and residuals of a myocardial infarction. The Court has held that, when aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995); see also 38 C.F.R. § 3.310 (2012). The February 2009 examiner reviewed the Veteran's claims file, including his service treatment records, and opined that his coronary artery disease was not caused by or the result of his military service. It was also noted that the disorder did not manifest within one year of the Veteran's separation from service. In addition, the examiner concluded that coronary artery disease was not caused by or a result of the Veteran's service-connected respiratory disability. In so doing, he indicated that the current medical literature does not show a link between COPD or paralysis of the left hemidiaphragm and the development of coronary artery disease. However, as to the matter of whether the service-connected respiratory disability aggravated the heart condition, the examiner opined that this issue could not be resolved without resort to speculation because both conditions share tobacco abuse as a risk factor, although it was noted that exacerbation of COPD may strain an already diseased heart through hypoxemia and increased breathing. The examiner stated that the test results from a six minute walk could show whether the Veteran's service-connected respiratory disability aggravated his coronary artery disease, yet at the time of the examination, the test could not be ordered due to the Veteran's fragile health. The Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence). In June 2010, an additional opinion was obtained from the VA examiner who conducted the VA examination in February 2009. However, this opinion is also inadequate because the examiner did not address whether the Veteran's heart condition was aggravated by his service-connected respiratory disability. After reviewing the file, the examiner only concluded that it is less likely as not that the heart condition was caused by or a result of the service-connected paralysis of the left hemidiaphragm with chronic obstructive pulmonary disease. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that an additional medical opinion is necessary to address whether the Veteran's service-connected respiratory disability aggravated his coronary artery disease and residuals of a myocardial infarction. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the failure by the BVA to enforce compliance with the requirements of 38 U.S.C.A. § 5103(a) for the VA to inform a claimant of the information or evidence necessary to substantiate a claim, as well as to inform a claimant of which evidence the VA would seek to provide and which evidence the claimant is to provide, is remandable error. In this case, it does not appear that the Veteran has been adequately notified in connection with his claim for service connection. In this regard, the record contains letters informing him of what the evidence must show to establish service connection on a direct basis, notifying him of the division of responsibilities in obtaining the evidence, and explaining how disability ratings and effective dates are determined. However, those letters did not notify the Veteran of what evidence was necessary to substantiate a claim for service connection on a secondary basis. The Court has indicated that such specific notice is required to comply with the law. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Therefore, upon remand, the Veteran should be provided proper notice. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the National Personnel Records Center (NPRC), or other appropriate location, to make a specific request for service medical inpatient records of the Veteran and through any other appropriate records repository to which pertinent clinical records may have been sent. These efforts should include requesting clinical records documenting the Veteran's treatment in 1973 at Ireland Army Hospital at Fort Knox, Kentucky. 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 the RO's attempts to locate his medical records from his active duty service as well as any further action to be taken. 2. The RO should obtain any outstanding VA medical records dated from July 2009 to July 2011 from the VA Medical Center in Pittsburgh, Pennsylvania. If VA attempts to obtain any outstanding records that are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. The RO should send the Veteran a notice letter in connection with his claim for service connection for coronary artery disease and residuals of a myocardial infarction. Specifically, the letter should notify him of the evidence necessary to substantiate the claim on both a direct and secondary basis. 4. The RO should then refer the Veteran's claims folder to the February 2009 and 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 coronary artery disease and residuals of a myocardial infarction. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, a July 2009 private physician's statement, and the Veteran's own assertions. The examiner should provide an opinion on the following questions: a.) Is it at least as likely as not (50 percent probability or more) that the Veteran's coronary artery disease and the residuals of a myocardial infarction are causally or etiologically related to his military service? b.) Is it at least as likely as not (50 percent probability or more) that coronary artery disease and the residuals of a myocardial infarction are proximately due to, or the result of the Veteran's service-connected paralysis of the left hemidiaphragm with chronic obstructive pulmonary disease? c.) Is it at least as likely as not (50 percent probability or more) that the coronary artery disease and the residuals of a myocardial infarction were aggravated by his service-connected paralysis of the left hemidiaphragm with chronic obstructive pulmonary disease? In rendering the opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the requested action, and any additional notification and development deemed warranted, the RO should readjudicate the Veteran's claim for service connection for coronary artery disease and the residuals of a myocardial infarction. If the decision remains adverse, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded an appropriate period of time within which to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 _______________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals ________________________________ CHERYL L. MASON 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).