Citation Nr: 1315792 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-44 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for unstable angina, to include as secondary to service-connected paroxysmal atrial tachycardia. REPRESENTATION Appellant represented by: Paul Epstein, Attorney ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from December 1974 to June 1976. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In February 2012, the Board remanded the claim to the Appeals Management Center (AMC) for further development. As will be discussed below, the Board must remand the issue again because the file does not reflect substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In the February 2012 remand, the Board noted that the Veteran had raised additional claims that had not been adjudicated by the RO. Specifically, in July 2008 correspondence, she raised the issue of whether there was clear and unmistakable error (CUE) in a January 1978 rating decision that decreased her disability rating for service-connected paroxysmal atrial tachycardia from 20 percent to noncompensable effective on June 1, 1977. In August 2008 correspondence, the Veteran also raised the issues of entitlement to service connection for a back disorder, facial pain, dizziness, and cold hands and feet. In addition, she submitted correspondence in January 1999 in which she raised the issues of entitlement to service connection for a leg disorder, a back disorder, and shortness of breath. These issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs RO. VA will notify the appellant if further action is required. REMAND A review of the record shows that some of the prior directives from the February 2012 remand were not completed. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. In the February 2012 remand, the Board directed the AMC arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any additional heart disorder, including unstable angina, that may be present. Specifically, the examiner was requested to opine as to whether the Veteran has a current heart disorder other than her service-connected paroxysmal atrial tachycardia and indicate whether the Veteran has unstable angina. For each heart disorder identified, the examiner was asked to provide an explanation as to "whether it is at least as likely as not that the current disorder is causally or etiologically related to the Veteran's military service" and "whether it is at least as likely as not that the current disorder was either caused by or permanently aggravated by the Veteran's service-connected paroxysmal atrial tachycardia." Following the remand, the Veteran was afforded a VA heart examination in August 2012. In her opinion, the examiner stated that there was no official diagnosis for the Veteran's claimed chest pain. She also noted that no diagnosis of "unstable angina" had been made by a cardiologist and observed that clinical testing had not resulted in a diagnosis. She opined that the claimed condition of chest pain was "less likely than not... incurred in or caused by the claimed in-service injury, event, or illness." However, in another section of the examination report, the examiner also opined that the claimed condition was "at least as likely as not... incurred in or caused by the claimed in-service injury, event, or illness." While the examiner did not provide a secondary service connection opinion as requested in the remand directives, the rationale that follows the second opinion is as follows: "The [V]eteran's condition of PSVT [paroxysmal supraventricular tachycardia] has been documented as being service connected at this time. This is NOT related to the [V]eteran's symptoms of 'chest pains' as they have been described as two different heart problems. The Board also requested that the examiner discuss a May 1996 electrocardiogram (EKG) report with an impression of myxomatous mitral valve with trace mitral insufficiency; VA treatment records dated from April 2008 to September 2009 showing complaints of chest pain, including a September 2009 note showing that the Veteran had "intermittent symptoms of angina"; and, May 2003, January 2006, and January 2008 private EKG reports, including the January 2008 report showing "mitral valve-discreet prolapsed and slight regurgitation." However, the examiner did not address such evidence in her August 2012 examination report. Therefore, in an effort to comply with the prior remand, the Board finds that an additional VA medical opinion is necessary for the purpose of determining the nature and etiology of the Veteran's claimed unstable angina and chest pain. In addition, in the February 2012 remand, the Board requested that the AMC translate the January 2006 private EKG report from Spanish to English and associate a copy of the translated report with the claims file. A review of the record shows that an EKG report was forwarded for translation in May 2012; however, no copies of the translated report have been associated with the claims file. Similarly, in May 2012, the Veteran submitted a copy of another uninterpreted EKG dated in May 2012. The August 2012 VA examiner noted that the Veteran had an EKG in Portugal in 2012, but she was unable to interpret the results. Lastly, it appears that there may be additional medical records that are pertinent to the claim. The most recent VA treatment records associated with the claims folder are dated in September 2009. Therefore, ongoing medical records should be obtained. VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. The RO should ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include, but not limited to, any VA treatment records not associated with the record. The RO must provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. The RO must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform her and provide her an opportunity to submit copies of the outstanding medical records. 2. The RO should translate the January 2006 and May 2012 private EKG reports from Spanish to English and associate copies of the translated reports with the claims file. 3. After obtaining any additional records identified by the Veteran and translated copies of the EKG reports, the claims file and a copy of this remand should be returned to the August 2012 VA examiner, or if she is unavailable, to another suitably qualified VA examiner, for a medical opinion to determine the nature and etiology of any heart disorder, other than the service-connected paroxysmal atrial tachycardia, that may be present. 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, and statements. In rendering the requested opinions, the examiner should specifically address the May 1996 EKG report with an impression of myxomatous mitral valve with trace mitral insufficiency; VA treatment records dated from April 2008 to September 2009 showing complaints of chest pain, including the September 2009 note showing the Veteran had "intermittent symptoms of angina"; and, the May 2003, January 2006, January 2008, and May 2012 private EKG reports, including the January 2008 report showing "mitral valve-discreet prolapsed and slight regurgitation." It should be noted that the Veteran is competent to attest to observable symptomatology. 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 is requested to review the claims file and her August 2012 opinion and to identify all current heart disorders, other than paroxysmal atrial tachycardia. She should also specifically state whether the Veteran has unstable angina. For each disorder identified, the examiner should state whether it is at least as likely as not that the current disorder is causally or etiologically related to the Veteran's military service. The examiner should also state whether it is at least as likely as not that the current disorder was either caused by or permanently aggravated by the Veteran's service-connected paroxysmal atrial tachycardia. The examiner should also discuss any medically known or theoretical causes of the Veteran's current heart disorder(s), manifested by chest pain. (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 conclusion is so evenly divided that it is as medically sound to find in favor of 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. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The RO should review the examination report to ensure that it is in complete compliance with this remand. If the report is deficient in any manner, the RO should implement corrective procedures. 5. After completing the above actions, the RO should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 6. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her 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 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). _________________________________________________ JESSICA J. WILLS 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).