Citation Nr: 1326527 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 08-28 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for cardiovascular disorders, to include hypertension, residuals of myocardial infarction, atrial fibrillation, angina, right branch bundle block, systolic ejection murmur, and coronary artery disease. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran had active military service from October 1979 to February 1983. He also had subsequent periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army National Guard between October 1997 and June 2005. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Reno, Nevada. The issue of entitlement to service connection for headaches, to include as secondary to service-connected spinal disability, been raised by the record, but it has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over that issue, and it is referred to the RO for appropriate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In October 2012, the Board remanded the Veteran's claim for further development. Specifically, the Board directed the RO contact all appropriate sources to verify the Veteran's various periods of ACDUTRA and INACDUTRA between 1997 and 2005. All attempts to verify this service and to obtain the Veteran's National Guard personnel records were supposed to be documented in the record. These dates were then to be provided to an appropriate VA examiner for consideration in the rendering of an opinion as to whether or not any of the Veteran's cardiovascular disorders were incurred or aggravated during a specific period of the Veteran's military service, to include active duty, ACDUTRA and INACDUTRA. Review of the evidence of record reveals that the RO sought and obtained personnel records for the Veteran. However, these personnel records related to the Veteran's active duty in the Army from 1978 to 1983. There is no indication that the AMC/RO took any action to obtain verification of the Veteran's various periods of ACDUTRA and INACDUTRA between 1997 and 2005. Therefore, in order to satisfy VA's duty to assist, the Board must again remand the case for said verification. In addition, the October 2012 Board remand asked for a medical opinion as to whether any of the Veteran's currently diagnosed cardiac disorders were related to his military service. The requested opinion was furnished in March 2013. However, the examining physician did not address the Veteran's diagnosis of hypertension, which the Veteran maintains had its onset during his active duty from 1978 to 1983. The examiner also did not address whether the chest pains the Veteran was hospitalized for during a period of INACDUTRA in December 2004 reflect that he had a myocardial infarction at that time. Thus, the evidence before the Board still does not include adequate medical opinions as to whether there is any etiological relationship between the Veteran's currently diagnosed cardiovascular disorders and any incident of his military service, including during active duty, ACDUTRA, or INACDUTRA. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). "Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing." Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Consequently, in order to satisfy VA's duty to assist, the Board finds that another remand is necessary in order to obtain adequate medical opinions. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Additionally, by failing to ensure that an adequate medical opinion was obtained, and by failing to obtain verification of the Veteran's National Guard periods of ACDUTRA and INACDUTRA, the RO did not substantially comply with the Board's October 2012 remand directives. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand for corrective action is required. Id. Accordingly, the case is remanded for the following action: 1. Contact the National Personnel Records Center and all other appropriate sources to verify the Veteran's various periods of ACDUTRA and INACDUTRA from 1997 to 2005. All attempts to verify this service, or obtain the Veteran's National Guard personnel records must be documented in the record. If, after making reasonable efforts to verify the Veteran's National Guard military service or obtain his National Guard service personnel records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain or the dates of military service they cannot verify; (b) briefly explain the efforts that the RO made to obtain those records or verify his service; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After completing any additional notification and/or development action deemed warranted by the record, arrange for a review of the Veteran's claims file by an appropriate specialist, such as an internist or a cardiologist, in light of the questions of causation presented on the issue of entitlement to service connection for hypertension and any other diagnosed cardiovascular pathology. Provide the reviewer with a list of the verified periods of ACDUTRA and INACDUTRA for the Veteran. The physician is to address the history of the nature and extent of the Veteran's hypertension and any other diagnosed cardiovascular pathology. The physician is to determine whether the currently shown hypertension and any other diagnosed cardiovascular pathology is/are related to any incident of the Veteran's military service, including during active service, ACDUTRA, or INACDUTRA. The claims file, all records on Virtual VA, and all other VA electronic records must be made available to the reviewer, and the reviewer must specify in the report what records were reviewed. The reviewer must specify the dates encompassed by the Virtual VA and other VA electronic records that were reviewed. If the physician determines that an examination is needed before the requested opinion can be rendered, schedule the Veteran for such an examination. The physician must consider all blood pressure readings and other pertinent clinical findings in the Veteran's service medical records, and comment on the clinical significance of, and treatment for, any atypical findings, to include whether they represented a normal variant. The physician must identify the Veteran's various risk factors for the development of hypertension and any other diagnosed cardiovascular pathology. Based on the findings of the review of the medical evidence of record, as well as the Veteran's statements, the physician must render an opinion concerning: (a) When was the currently diagnosed hypertension/hypertensive cardiovascular disease initially manifested? When were each of the rest of the Veteran's currently diagnosed cardiovascular conditions, including systolic ejection murmur, myocardial infarction, atrial fibrillation, coronary artery disease, angina and right bundle branch block, initially manifested? (b) Were there any signs or symptoms of hypertension or other cardiovascular pathology noted in service or within one year of active duty service separation in February 1983 which were the first manifestations of the Veteran's current hypertension or any other currently diagnosed cardiovascular pathology? (c) Did the Veteran experience a myocardial infarction on February 8, 2004, or during any other verified period of INACDUTRA? If so, identify any residuals. (d) Has the Veteran's hypertension or any other diagnosed cardiovascular pathology been aggravated to any degree by a service-connected disability? Was any diagnosed cardiovascular pathology aggravated to any degree during any verified period of ACDUTRA? A complete rationale for all requested opinions must be provided. If the physician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the physician must provide the reasons why an opinion would require speculation. The physician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the physician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular physician. The report prepared must be typed. 3. The evidence of record must be reviewed to ensure that all development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the medical report. If the report does not include fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the providing physician for corrective action. See 38 C.F.R. § 4.2 (2012). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran may present additional evidence or argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).