Citation Nr: 1324930 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 07-37 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a disability manifested by cardiomegaly, claimed as a heart disability, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1987 to November 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2009, the Board remanded the issue of entitlement to service connection for a disability manifested by cardiomegaly, claimed as a heart disability, to include as due to undiagnosed illness to the RO for additional notice and development. In October 2011, the Board denied the claim. In September 2012, pursuant to a Joint Motion for Remand, the Court of Appeals for Veterans Claims (Court) vacated the Board's October 2011 decision and remanded the matter for further consideration. The Veteran was scheduled for a September 2009 Central Office hearing in conjunction with his claim, but failed to appear following proper notice of the hearing. As VA did not receive notice of a request for rescheduling, his request is considered withdrawn. 38 C.F.R. § 38.702(d) (2012). The Board notes that in its October 2011 decision, it remanded the issue of entitlement to an initial rating in excess of 30 percent for glaucoma, right eye, status post trabeculectomy, for the issuance of a statement of the case, and for the Veteran to be provided the opportunity to perfect an appeal. To date, no such statement of the case has been issued, and the issue is not currently before the Board. The Board takes this opportunity to encourage the RO/Appeals Management Center to issue an appropriate statement of the case to enable the Veteran to pursue his claim. The issues of entitlement to service connection, on a direct basis, for a skin condition and chronic pain syndrome, service connection, on a secondary basis, for depressive disorder/major depression, anxiety disorder, hypertension, and erectile dysfunction, and for an increased rating for posttraumatic stress disorder, have been raised by the record (in June 2010 and May 2013 communications from the Veteran), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 In the Joint Motion for Remand, the terms of which were incorporated into the September 2012 Court order, the VA and the appellant agreed that the Board's determination, based on its interpretation of the July 2011 VA heart examination, that the Veteran had a "clinical disorder" of "mildly reduced systolic function of the heart with global hypokineses and ejection fraction of 45 to 50 percent" amounted to a medical conclusion in violation of Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) and Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). In light of the Joint Motion, the Board is unable to adjudicate the claim without a clarification of the July 2011 examination report. An addendum is necessary to address whether the signs of the Veteran's heart condition meets the criteria for a medical diagnosis, or whether the Veteran's condition must be considered an "undiagnosed illness." Additionally, according to VA treatment records from November 2012 indicate that the Veteran was hospitalized in either October or November 2012 related to new onset heart failure. The treatment records for that hospitalization are unavailable, but references found in the November 2012 treatment record suggest that an echocardiogram performed at that time demonstrated an ejection fraction of 20 percent, and that the Veteran was prescribed the use of a "Life Vest," which included a cardiac monitor/recorder as well as a defibrillator. He was due to return for further monitoring in January 2013. These ongoing medical records must be obtained on remand prior to obtaining the previously-discussed addendum medical opinion. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing VA treatment records. If the Veteran indicates that he has obtained private treatment for his heart condition, the RO/AMC must ask that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any relevant treatment records from any private medical providers. The RO/AMC must make at minimum two attempts to obtain the identified records. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After all identified records have been associated with the claims file, the file must be returned to the July 2011 heart examiner, if she remains available to VA. The examiner should review the claims file, this remand, and all relevant records in the Virtual VA electronic records system. Thereafter, the examiner should address the following in an addendum to her July 2011 examination report: (a) Do the signs/symptoms of the Veteran's heart condition, as noted in the July 2011 examination report or in any other treatment records, indicate a known clinical diagnosis? (b) If the Veteran does have a known clinical diagnosis, (1) what is that diagnosis; and (2) is it at least as likely as not (a 50 percent probability or greater) that the diagnosed disability began during service, is due to an event or injury that occurred during service, is caused or aggravated by a service-connected disability (to include posttraumatic stress disorder) or is otherwise etiologically related to the Veteran's service? (c) Does the Veteran have a chronic disability resulting from an undiagnosed illness or a medically unexplained, chronic multisymptom illness? For the examiner's point of reference, under VA regulations, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue. (2) Signs or symptoms involving skin. (3) Headache. (4) Muscle pain. (5) Joint pain. (6) Neurological signs or symptoms. (7) Neuropsychological signs or symptoms. (8) Signs or symptoms involving the respiratory system (upper or lower). (9) Sleep disturbances. (10) Gastrointestinal signs or symptoms. (11) Cardiovascular signs or symptoms. (12) Abnormal weight loss. (13) Menstrual disorders. The examiner should provide a full and complete rationale in support of her opinion. If the examiner is unable to provide the requested opinion without resort to speculation, she should explain why such an opinion would be speculative. If the July 2011 examiner is no longer available to VA, a similarly qualified medical professional must provide the requested opinion. Only if a medical professional indicates one is necessary should the Veteran be asked to attend an additional physical examination. 3. After the development requested has been completed, the RO should review the addendum report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). _________________________________________________ M. Mac 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).