Citation Nr: 1317817 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-27 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cardiovascular disorder, to include coronary artery disease, angina, and a heart murmur. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his brother G.J. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to October 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's application to reopen his previously denied claim of service connection for heart disease (to include a systolic murmur) for failure to submit new and material evidence. In a November 2010 videoconference hearing, the Veteran and his witness presented oral testimony in support of the claim before the undersigned Veterans Law Judge. A transcript of this hearing has been obtained and associated with the claims file for review and consideration. Subsequently, in a January 2011 appellate decision, the Board determined that new and material evidence had been submitted, reopened the claim for a de novo review, and remanded the case for additional evidentiary development. Thereafter, in an April 2012 rating decision, the RO denied the Veteran's claim for VA compensation for a cardiovascular disorder on the merits. The Board issued its own decision in May 2012 that denied service connection for a cardiovascular disorder, to include coronary artery disease, angina, and a heart murmur. In November 2012, pursuant to a joint motion for remand (JMR) between the appellant and the Secretary of VA, the United States Court of Appeals for Veterans Claims (Court) vacated a May 2012 Board decision denying the claim for service connection for a cardiovascular disorder and remanded the case back to the Board for development consistent with the joint motion. For the reasons that will be discussed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if any further action is required on their part. REMAND By history, in January 2011, the Board remanded the reopened cardiovascular disorder claim for additional evidentiary development. In pertinent part, the Board instructed the RO/AMC to undertake the appropriate actions to obtain outstanding medical evidence that was identified by the record as being relevant to the claim. These included records of the Veteran's treatment from the VA Medical Centers in Gainesville, Florida, and Daytona, Florida, which he reportedly received shortly after his discharge from active duty in October 1977; a private fee-based cardiologist's treatment report dated in October 2008; and medical records from the New River Correctional Institution of the Florida Department of Corrections, dated in 2000, which reportedly pertain to the claimant's treatment for a heart attack in 2000 while incarcerated at this facility. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary of VA a concomitant duty to ensure compliance with the terms of such an order. The Court further clarified in Dyment v. West, 13 Vet. App. 141, 146-47 (1999), that exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions. In its November 2012 JMR, the Parties agreed that they could not conclusively determine, based on its review of the Veteran's claims file in its current state, whether or not VA had substantially complied with the directives of the January 2011 Board remand regarding its attempts to obtain the above-mentioned medical records, notwithstanding the Board's determination in its May 2012 decision that there was such substantial compliance. The May 2012 appellate decision denying service connection for a chronic cardiovascular disorder (to include coronary artery disease, angina, and a heart murmur) was thereby vacated and the matter was remanded to the Board with the instructions that the RO/AMC must attempt once again to obtain the outstanding medical records. Each of these attempts must be carefully documented and this documentation must be added to the Veteran's claims file, including memorandums showing formal findings of unavailability regarding these records if the attempts to obtain them are unsuccessful. The Veteran's VA medical records (including those relating to his cardiovascular treatment) associated with his claims file are now current up to April 2011. The Board observes that no medical records associated with the Veteran's claim are viewable on his account in the Virtual VA electronic database. Therefore, to ensure that all relevant records are associated with the file prior to adjudication of the claim, VA should take this opportunity to request that the Veteran identify all sources of medical treatment - both VA and private - and then attempt to obtain all such records that are not presently associated with the evidence, in addition to those records identified by the Court in its November 2012 vacatur and remand. Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO/AMC for the following action: 1. After contacting the Veteran and inquiring about all sources of his medical treatment (both private and VA) and obtaining the appropriate waivers, the RO/AMC should attempt to obtain copies of updated VA and private medical records pertinent to the Veteran's medical treatment since April 2011, which have not yet been associated with the evidence. All records obtained must be associated with his claims folder. If the RO cannot obtain records identified as relevant by the Veteran, a memorandum to that effect should be included in the file. The Veteran is to be notified of any unsuccessful efforts in this regard. 2. The RO/AMC should attempt to obtain all VA medical records relating to the Veteran's treatment that was reportedly received at the VA Medical Center (VAMC) in Gainesville, Florida, from October 1977 (i.e., the month of his discharge from active duty). If the RO/AMC cannot obtain any records from the Gainesville VAMC, the Veteran is to be notified of the unsuccessful effort. The RO/AMC should prepare a memorandum that presents a formal finding of the unavailability of these records. This memorandum should thereafter be added to the Veteran's claims file. 3. The RO/AMC should attempt to obtain all VA medical records relating to the Veteran's treatment that was reportedly received at the VAMC in Daytona, Florida, from October 1977 (i.e., the month of his discharge from active duty). If the RO/AMC cannot obtain any records from the Daytona VAMC, the Veteran is to be notified of the unsuccessful effort. The RO/AMC should prepare a memorandum that presents a formal finding of the unavailability of these records. This memorandum should thereafter be added to the Veteran's claims file. 4. After contacting the Veteran and obtaining the appropriate waivers, the RO/AMC should attempt to obtain all records relating to the Veteran's fee basis treatment received in October 2008 from a private cardiologist. If the RO/AMC cannot obtain these records, the Veteran is to be notified of the unsuccessful effort. The RO/AMC should prepare a memorandum that presents a formal finding of the unavailability of these records. This memorandum should thereafter be added to the Veteran's claims file. 5. After contacting the Veteran and obtaining the appropriate authorizations, waivers, and witness signatures, the RO/AMC should attempt to obtain all medical records relating to the Veteran's reported treatment for a heart attack that was received during his incarceration at New River Correctional Institution of the Florida Department of Corrections (DOC) in 2000. The RO/AMC should also ask the Reception and Medical Center of the DOC to clarify, in writing, whether or not the Veteran's medical records dated in 2000 are inactive, and whether or not his medical records dated in 2002 (if any such records are present) are inactive, and to state the significance of the active and/or inactive status of a medical record in the DOC's possession. If the RO/AMC cannot obtain any records from the DOC relating to the Veteran's reported treatment in 2000 and/or 2002 for a heart attack, he is to be notified of these unsuccessful efforts. The RO/AMC should prepare a memorandum that presents a formal finding regarding the unavailability of these records. This memorandum should thereafter be added to the Veteran's claims file. 6. Following completion of the above, the RO/AMC should review the record and make a determination as to whether any additional development is warranted. For example, if VA records from 1977 are obtained that show treatment for a heart disorder, consideration should be given as to whether a new VA examination is needed. 7. After all the above development has been completed, the Veteran's claim of entitlement to service connection for a cardiovascular disorder (to include coronary artery disease, angina, and a heart murmur) should be adjudicated on the merits following review of all relevant evidence associated with the claims file. If the maximum benefit remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The appellant 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). _________________________________________________ MICHAEL A. HERMAN 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).