Citation Nr: 1319637 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-25 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for coronary artery disease (CAD), claimed as a heart condition. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from November 1973 to November 1976. The Veteran also had service in the Alabama Army National Guard (ALARNG) from June 1988 to June 2004. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of July 2005 and January 2006 by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). In July 2011 this matter was last before the Board at which time it was remanded for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND When this matter was last before the Board, the Board remanded it for further development. Specifically, the Board sought to verify all periods of the Veteran's service in the National Guard and, in particular, the dates (by day, month and year) of active duty, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Board also remanded the claims to obtain etiological opinions on hypertension, CAD and the Veteran's claimed psychiatric disorder, inter alia. In regard to the Board's requested development regarding verification of the Veteran's National Guard service comprising active duty, ACDUTRA and INACDUTRA, this development was not completed. Although some personnel records were associated with the record, verification of active duty, ACDUTRA and INACDUTRA was not apparently attempted. Accordingly, the matter must again be remanded to ensure compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. When this matter was last before the Board the Board directed that the Veteran be afforded a VA examination to address the etiology of his CAD and hypertension. The Board requested that the examiner comment on whether CAD (or any diagnosed heart condition) and hypertension had manifested during active service from November 1973 to November 1976 or within 1 year after his discharge from service, i.e. by November1977. If the responses to these requests were negative, the examiner was asked to address whether hypertension and CAD (or any diagnosed heart condition) were incurred or aggravated during a period of National Guard ACDUTRA. In a January 2012 opinion, a VA examiner rendered negative opinions on all questions and did not address whether CAD (or any diagnosed heart condition) and hypertension had manifested within 1 year following his discharge in November 1976. Stegall, supra. Moreover, as the Veteran's dates of ACDUTRA had not been verified, the examiner's opinion is based on an incomplete history. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, the examination report must be returned as inadequate. 38 C.F.R. § 4.2. In its remand directives, the Board also requested that the Veteran be afforded a VA examination to address his claim for service connection of an acquired psychiatric disorder. In December 2011 such an examination was conducted and the examination report documents that the Veteran had reported being hospitalized in service in 1975 for psychiatric complaints and that the examiner remarked that the records thereof "would be helpful to review." In February 2012, following the examination, records related to the Veteran's hospitalization for nervous problems were associated with the claims file. Thus, the examination report is based on an incomplete medical history. Barr, supra. In light of this development, the examination report must be returned. 38 C.F.R. § 4.2. Also, in a December 2011 statement the Veteran related that while on "summer camp" in 1997 he "was short of breath and had to be taken ... to the Air Force hospital [in] downtown Panama." In this statement he related further that he had received an IV and "nitro" under his tongue until his blood pressure came down. No records reflecting this treatment are contained within the claims file. Hospital records may be kept separately from other service treatment records, and it does not appear that efforts have been made to obtain such records. Therefore, the case must be remanded to attempt to obtain any such records. Notably, Howard Air Force Base in Panama was closed as of November 1, 1999. Lastly, the Board notes that in October 2012 the Appeals Management Center (AMC) attempted to provide the Veteran a Supplemental Statement of the Case (SSOC) covering the issues on appeal. The AMC attempted to send the SSOC to a Post Office box address; however, the SSOC was returned as undeliverable. Notably, only one month prior, i.e. in September 2012, the Veteran had listed a return address with a street address rather than a post office box in Alabama. Upon remand, the AMC is directed to send the Veteran a copy of the SSOC to the Center Point address reflected on the Veteran's September 2012 communication to VA. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate agency, which may include the Alabama Adjutant General, the Defense Finance and Accounting Services (DFAS) and the National Guard Bureau for verification of all periods of the Veteran's service in the National Guard from 1988 to 2004. In particular, the inclusive dates (by day, month, and year) of active duty, ACDUTRA and INACDUTRA should be verified. Reports of retirement points do not contain the necessary information in this regard. Additionally, obtain a complete copy of the Veteran's service personnel records from National Guard service from 1988 to 2004. All efforts to obtain these records should be fully documented. If these records cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Request any records related to the Veteran's reported 1997 hospitalization at the U.S. Air Force Hospital in Panama concerning treatment for heart problems and hypertension. Requests should be made to the appropriate facilities bearing in mind that as of November 1, 1999, Howard Air Force Base in Panama was closed. All efforts to obtain these records should be fully documented. If these records cannot be obtained, the Veteran must be notified pursuant to 38 C.F.R. § 3.159(e) (2012). The Veteran should also be informed that he can submit alternate evidence to supplement the available service treatment records. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b. 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, return the claims file to the examiner that conducted the January 2012 VA examination, if available, for an addendum opinion to assess the nature and etiology of the currently diagnosed hypertension and heart condition, including but not limited to coronary artery disease, and their relationship to service, if any. If the January 2012 VA examiner is not available, the claims file must be available to another appropriate health care provider for the requested opinion. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to express an opinion as to whether the Veteran's currently diagnosed hypertension and heart condition, including but not limited to coronary artery disease, was/were manifested during the period of active service from November 1973 to November 1976 or within one year after discharge from service. In this regard, the Veteran has reported that he experienced chest pain during this period of service while running. If not, the examiner is asked to express an opinion as to whether the currently diagnosed hypertension and heart condition is/are at least as likely as not (i.e., 50 percent or greater possibility) related to that period of active service. The examiner is asked to discuss the significance, if any, of the Veteran's non-service-connected type II diabetes mellitus in reaching this conclusion. See Dr. Lodewick's July 2004 statement. The examiner must provide a complete rationale for any stated opinion. If the responses above are negative, the examiner is asked to address whether is it at least as likely as not (i.e., 50 percent or greater possibility) that the hypertension and coronary artery disease (or any heart condition) was/were incurred during a period of National Guard active duty for training (ACDUTRA) or that they were aggravated (i.e., permanently worsened) beyond their natural progression during a period or periods of ACDUTRA. 4. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, return the claims file to the examiner that conducted the December 2011 VA psychiatric examination, if available, for an addendum opinion to assess the nature and etiology of any and all psychiatric disabilities and their relationship to service, if any. If the December 2011 VA examiner is not available, the claims file must be available to another appropriate health care provider for the requested opinion. The examiner is asked to express an opinion as to whether any currently diagnosed psychiatric disorders, including but not limited to depression, atypical dissociative disorder, and adjustment reaction with mixed emotional features, at least as likely as not (i.e., 50 percent or greater possibility) began in or are related to the Veteran's period of active service from November 1973 to November 1976, including the in-service treatment for "nerves." See May 1975 inpatient treatment records. The examiner should also consider the Veteran's complaints of continuity of symptoms since discharge from service. The examiner must provide a complete rationale for any stated opinion. 5. After the requested examinations have been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. The examination reports should be returned to the examiner if they are deficient in any manner. 6. Send to the Veteran's current address (see September 2012 communication from the Veteran listing his address) a copy of the October 2012 SSOC for the issues on appeal. Documentation that this was accomplished must be associated with the claims folder or electronic record. 7. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a SSOC. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). _________________________________________________ S. S. TOTH 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).