Citation Nr: 1328915	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  12-30 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for a heart disability.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

Y. Curtis, Associate Counsel







INTRODUCTION

The Veteran served on active duty from September 1963 to March 1967.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for ischemic heart disease.

In a letter received October 2012, the Veteran requested a hearing with a Decision Review Officer.  The hearing was scheduled for February 2013, however, the Veteran withdrew his request for a hearing in correspondence received January January 2013.

Where a Veteran claims service connection for a specific disability, any disability reasonably encompassed by the Veteran's claim must be considered.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In accordance with Clemons, ischemic heart disease has been re-characterized above to include all heart disabilities.  Id.

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

The July 2012 examination provided a negative opinion with regard to whether the Veteran's post-service heart disability is related to an event or injury in service, but failed to include a rationale.  There is no VA rationale related to this theory of entitlement and on remand an adequate opinion addressing this theory of entitlement must be obtained.

Additionally, the Veteran submitted medical evidence directly to the Board in May 2011.  He did not waive his right to have the RO initially consider this additional evidence.  38 C.F.R. 20.1304(c) (2012).  Thus, the additional evidence must be reviewed by the RO. 

Accordingly, the case is REMANDED for the following action:

1.  Return the claim folder to the July 2012 examiner for an addendum opinion.  The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed heart disability is related to service, to include in-service herbicide exposure.

The Veteran is presumed to have been exposed to herbicides, including Agent Orange, in service.

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

2.  Review the claim file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated.  Then readjudicate the claim on appeal in light of the additional evidence.  If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond.  The case is to then be returned to the Board for further appellate review.

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. 2010).




____________________________________________
RONALD W. SCHOLZ
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).
Department of Veterans Affairs