Citation Nr: 1318563 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 05-33 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a cardiovascular disorder. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Esquire ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee, that, in pertinent part, denied entitlement to service connection for a cardiovascular disorder. In a July 2009 decision, the Board denied the Veteran's claim of service connection for a cardiovascular disorder. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand, a July 2010 Order of the Court vacated and remanded the claim for readjudication in accordance with the directives of the Joint Motion for Partial Remand. The Board remanded this claim for additional development in November 2010, August 2011, June 2012, and December 2012 in compliance with the July 2010 Order of the Court. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. The records contained therein have been carefully reviewed by the Board in conjunction with this appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. 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 claim. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). In its August 2011 remand, the Board requested that all outstanding VA medical center (VAMC) records be obtained. The Board specifically identified relevant VA records dated from January 2009, June 2010, and November 2010, which had been referenced by a January 2011 VA examiner, but were not of record. The remand order requested that all outstanding treatment records from the VAMC in Mountain Home, Tennessee, from 2004 to the present be obtained. Upon remand, VA medical record from April 2004 to December 2007, and from November 2010 to February 2012, were obtained and associated with the Virtual VA system. However, those treatment records referenced by the January 2011 VA examiner and noted in the Board's remand were not included in the records obtained. Accordingly, the Board again remanded the claim in June 2012 for the specific purpose of obtaining all outstanding VA treatment records, including those dated from December 2007 to November 2010. A September 2012 Supplemental Statement of the Case indicated that the following treatment records were obtained and associated with the Veteran's Virtual VA claims file: treatment records from Tennessee Valley Health Care System, dated April 2005, to December 2007; treatment records from the Mountain Home VAMC, dated from January 2011 to August 2012; and treatment records from the Memphis VAMC, dated from July 2008 to November 2011. A March 2013 Supplemental Statement of the Case indicated that treatment records from the VAMC Mountain Home dated from November 2010 to August 2012 were also added to the Veteran's Virtual VA claims file. The Board has carefully reviewed the Veteran's Virtual VA file for the treatment records referenced by the January 2011 VA examiner and indentified by the Board in its previous remands. Unfortunately, none of the requested treatment records are included in any of the records obtained from the VAMC Mountain Home, the VAMC Memphis, or the Tennessee Valley Health Care System. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, and attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). VA will make as many requests as are necessary to obtain relevant VA records and will end its efforts to obtain them only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159 (2012). In this case, there is no evidence that the aforementioned records are unobtainable, or otherwise do not exist. As such, the Board's August 2011 and June 2012 remand orders have not been complied with, and the case must be remanded yet again to obtain the following: (1) the July 2004 echocardiogram conducted in conjunction with the VA General examination (Nashville VAMC) in July 2004; (2) the January 2009 echocardiogram and contemporaneous treatment records, if any, from the Quillen VAMC; (3) the June 2010 myocardial perfusion study and contemporaneous treatment records, if any, from the Quillen VAMC; (4) the November 2010 VA treatment records documenting coronary angiography left ventriculography procedures; and (5) the November 2010 VA treatment record documenting a heart murmur. See Stegall v. West, 11 Vet. App. 268 (1998)(where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must obtain all outstanding, relevant VA medical center treatment records, and specifically, those referenced by the January 2011 VA examiner, to include: (1) the July 2004 echocardiogram conducted in conjunction with the VA General examination (Nashville VAMC) in July 2004; (2) the January 2009 echocardiogram and contemporaneous treatment records, if any, from the Quillen VAMC; (3) the June 2010 myocardial perfusion study and contemporaneous treatment records, if any, from the Quillen VAMC; (4) the November 2010 VA treatment records documenting coronary angiography left ventriculography procedures; and (5) the November 2010 VA treatment record documenting a heart murmur. All records obtained must be associated with the Veteran's paper claims file. 2. Efforts to obtain VA records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. If such records cannot be obtained, a formal finding of unavailability documenting efforts made to retrieve these records and their results must be made and associated with the paper claims file. The Veteran must be informed about the missing VA treatment records, of the efforts made to obtain the records, and of any additional efforts that will be made with regard to his appeal. 3. The RO/AMC must then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notifications or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. If the appeal is returned to Board without compliance of the remand directives by the RO/AMC, or the RO otherwise having jurisdiction of the claims file, another remand will likely result. See Stegall, 11 Vet. App. at 271. 4. The RO/AMC will the readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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).