Citation Nr: 1319984 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 94-44 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a cardiac disability, to include as secondary to the service-connected bilateral varicose veins and/or the service-connected psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant served on active duty from March 1965 to June 1966. This case came before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. Jurisdiction over the case was subsequently transferred to the RO in New York, New York. The Board denied the appellant's claim in September 2002, after an earlier Board decision had been vacated and the claim remanded by the United States Court of Appeals for Veterans Claims (Court). Another appeal was taken to the Court from the September 2002 Board decision, and by an Order dated in February 2003, the September 2002 Board decision was also vacated, and the case was remanded to the Board for further specified development. The Court did not retain jurisdiction over this matter. The Board subsequently remanded the appeal to the RO in June 2004 and January 2005. Thereafter, the Board again denied the claim in November 2006. The appellant thereupon filed an appeal with the Court. In October 2009, the Court issued an Order granting a joint motion of the parties and remanded the case to the Board for action in compliance with the joint motion. The Board then remanded the case for additional development in November 2010; the case has now been returned to the Board for further appellate action. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does currently contain evidence (VA medical treatment records dated from October 1998 to September 2012) that is pertinent to the claim on appeal that is not already included in the paper claims files. The issue of entitlement to travel pay in association with an April 2012 clinic appointment at the Broward County VA outpatient clinic has been raised by the record, but it apparently has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. REMAND The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The November 2010 Board remand directives state that the originating agency was to obtain any pertinent records adequately identified by the appellant, including any ongoing VA medical records, and then send claims files sent to the VA physicians who provided the September 2005 VA medical opinion, and request that the physicians review the entire claims files, including any newly obtained evidence, and provide an opinion as to whether the appellant's heart disorder is etiologically related to his service-connected varicose veins and/or his service-connected psychiatric disability. If those physicians were unavailable, the claims files were to be sent to another physician with appropriate expertise who was to provide the required opinion. While the case was in remand status, the originating agency did obtain additional pertinent records but did not obtain a new medical opinion following the receipt of those records. Therefore, another remand is required. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding medical records pertinent to the Veteran's claim, including VA treatment records dated from September 2012 onward. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims files must contain documentation of the attempts made. The appellant and his representative must also be informed of the negative results and be given the opportunity to secure the records. 2. Then, arrange for the claims files and any pertinent evidence in Virtual VA that is not contained in the claims files to be reviewed by one or both of the VA physicians who provided the September 2005 medical opinion. The physician(s) should be requested to review the Veteran's pertinent history and provide an opinion with respect to each heart disorder present during the period of the claim as to whether it is at least as likely as not (50 percent or better probability) that the disorder is etiologically related to his service-connected varicose veins and/or his service-connected psychiatric disability, to include whether the disorder was permanently worsened by the varicose veins and/or the psychiatric disability. The complete rationale for all opinions expressed and conclusions reached must be provided. If a required opinion cannot be provided, the physician or physicians should explain why the opinion cannot be provided.. If neither of the September 2005 physicians is unavailable, the RO or the AMC should arrange for the claims files and any pertinent evidence in Virtual VA that is not contained in the claims files to be reviewed by another physician with appropriate expertise who should be requested to provide the required opinions with supporting rationale. Another examination of the appellant should only be performed if deemed necessary by the person or persons providing the required information. 3. Undertake any other development determined to be warranted. 4. Readjudicate the claim for service connection in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the appellant's satisfaction, furnish the appellant and his representative with a Supplemental Statement of the Case (SSOC) and afford them an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant unless he is otherwise notified but he 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). _________________________________________________ Shane A. Durkin 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).