Citation Nr: 1317319
Decision Date: 05/28/13	Archive Date: 06/28/13

DOCKET NO. 04-10 116         MAY 18 2013

On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUE

Entitlement to service connection for coronary artery disease, status post myocardial infarction, including as secondary to service-connected major depressive disorder and anxiety disorder.

REPRESENTATION 

Appellant represented by:   Jeany Mark, Attorney at Law

ATTORNEY FOR THE BOARD

C. Fleming, Counsel

INTRODUCTION

The Veteran served on active duty from August 1965 to June 1969.

This matter comes to the Board of Veterans' Appeals (Board) from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran timely appealed the denial, and in an April 2010 decision, the Board, in pertinent part, denied entitlement to service connection for a coronary artery disease, status post myocardial infarction. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per an April 2012 Memorandum Decision, the portion of the Board's decision that denied entitlement to service connection for coronary artery disease, status post myocardial infarction, was vacated and remanded for compliance with the instructions in the Memorandum Decision.

In the April 2010 decision, the Board also remanded claims for service connection for a lung disability and for entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU), for further evidentiary development and adjudication. That development has not been completed; thus, these issues are not presently before the Board.

In his January 2004 appeal, the Veteran requested that he be provided the opportunity to testify at a Travel Board hearing before a Veterans Law Judge. The Veteran failed to report for the Travel Board hearing in April 2010. He has not requested that the hearing be rescheduled. Accordingly, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012).

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REMAND

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 1 Vet. App. 439 (1995).

Service connection is in effect for major depressive disorder and anxiety disorder, currently rated as 70 percent disabling. The Veteran asserts that he experiences contrary artery disease, status post myocardial infarction, as a direct result of his time in service or, in the alternative, that he developed the disorder secondary to his service-connected major depressive disorder and anxiety disorder.

Service treatment records do not reflect any findings or complaints of coronary artery disease or any other cardiac problems. There is no evidence that the Veteran developed arteriosclerosis manifested to a compensable degree within the first post-service year, to warrant service connection on the basis of presumptions referable to chronic diseases. Post-service treatment records reflect that the Veteran was first treated in 1998 for complaints of chest pain; echocardiograms conducted at the time were essentially normal. The Veteran was hospitalized in January 2000 for acute

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myocardial infarction; at that time, he was also diagnosed with chest pain, ischemic heart disease, coronary artery disease, and unstable angina. Further treatment records from 2001 indicate that, following the initial myocardial infarction, the Veteran's coronary artery disease was "asymptomatic." Further treatment records document that the Veteran has continued to be followed for coronary artery disease following the initial myocardial infarction, but the disorder has continued to be asymptomatic.

The Veteran submitted an opinion from a private physician, who wrote a letter dated in February 2013 addressing the etiology of the Veteran's coronary artery disease, status post myocardial infarction. In the letter, the physician noted that he had reviewed the Veteran's medical records and treatment history, including both service treatment records and records of his treatment since service. The physician concluded that the Veteran's coronary artery disease, status post myocardial infarction, is at least as likely as not "related to conditions that were present during his term of service and specifically depression." In so finding, the physician looked to multiple medical journal articles and treatises that establish an etiological link between "mental stress" and heart disease, as well as evidence from the Veteran's medical history. However, it is unclear that the physician actually examined the Veteran or reviewed his claims file in its entirety.

Under relevant VA regulations, action should be undertaken by way of obtaining a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: 1) contains competent evidence of diagnosed disability or symptoms of disability; 2) establishes that the claimant suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, which may be established by competent lay evidence; and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong of Section 3.159(c)(4), which requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, is a low threshold.

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In this case, the Veteran's service treatment records reflect that he was not diagnosed with any heart problems during his active duty. Similarly, the Veteran's separation medical examination conducted in April 1969 is silent as to any problems with the heart or cardiovascular system. The Board acknowledges that there is an opinion in the Veteran's claims file purporting to establish an etiological link between his current coronary artery disease and his service-connected major depressive disorder and anxiety disorder. However, the Board notes that it is not clear from the record that the private physician ever conducted physical examination of the Veteran, or indeed what medical evidence concerning the Veteran's claims he actually had available to review in rendering his opinion.

Thus, the Board finds that remand is required to afford the Veteran a VA examination to assess the nature and etiology of his claimed coronary artery disease status post myocardial infarction. This is in keeping with the Court's April 2012 Memorandum Decision addressing the need for a VA examination concerning the Veteran's service connection claim.

In view of the foregoing, the case is REMANDED for the following action:

1. Send the Veteran a letter requesting that he provide sufficient information and, if necessary, authorization to enable VA to obtain any additional pertinent evidence not currently of record. The Veteran must also be invited to submit any pertinent evidence in his possession, and the AOJ must explain the type of evidence VA will attempt to obtain as well as the type of evidence that is his ultimate responsibility to submit. The Veteran must also be provided specifically with notice concerning the information and evidence needed to substantiate a service connection claim on the basis of both direct and secondary service connection. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439,448 (1995).

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2. Schedule the Veteran for an examination to determine the etiology of any currently diagnosed coronary artery disease, status post myocardial infarction. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed.

The examiner must provide a diagnosis for each cardiovascular disability that the Veteran currently experiences. For each such disability diagnosed, indicate whether it is at least as likely as not (a 50% or higher degree of probability) that it had its clinical onset in service or is otherwise related to active service. In addition, indicate whether it is at least as likely as not that any such disability was caused by or has been chronically worsened by the Veteran's service-connected major depressive disorder and anxiety disorder.

If aggravated, specify the baseline of coronary artery disease prior to aggravation, and the permanent, measurable increase in coronary artery disease resulting from the service-connected major depressive disorder and anxiety disorder.

The examiner must reconcile any opinion with the evidence in the claims folder, to include in particular the positive opinion offered by the private physician in February 2013. The examiner must provide a comprehensive report, including a complete rationale for all conclusions reached.

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3. After completion of the above, re-adjudicate the Veteran's claim for entitlement to service connection for coronary artery disease, status post myocardial infarction, including as secondary to service-connected major depressive disorder and anxiety disorder. Such re-adjudication must also include consideration of any evidence received pursuant to this remand. If the benefit sought is not granted in full, the Veteran and his representative must then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.

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).

THOMAS J. DANNAHER 
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).

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