Citation Nr: 1332991 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 13-03 503A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cardiovascular disability, to include ischemic heart disease due to herbicide exposure. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from April 1969 to November 1970, including service in Vietnam from December 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In April 2011, the VA conducted a Social Security Administration (SSA) inquiry which indicated that the Veteran had been denied disability benefits. However, the information and records that the SSA relied upon in its determination are not of record and should be obtained as they may be pertinent to the matters on appeal. See Hayes v. Brown, 9 Vet. App. 67 (1996)(VA's duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination). In the Veteran's October 2010 Veterans Claim Assistance Act (VCAA) notice response, the Veteran attached a note from Dr. Vincent Ivers which stated, "Mr. Richards is unable to work. I believe he is 100% disabled." There are no medical records from Dr. Ivers associated with the case file. Accordingly, as the Board is now on notice of the existence of private medical records that are pertinent to the Veteran's claim, reasonable efforts to obtain those records should be made on remand. Specifically, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of the private records. At the January 2010 VA examination (VAX), the examiner noted that the Veteran had a history of coronary bypass surgery, but did not list the treatment date or facility in which the surgery was conducted. The examiner later concluded that the Veteran did not have heart disease. Private records from UAB Hospital indicate that the Veteran underwent aortobifemoral bypass surgery in September 2010 but no mention of coronary bypass surgery. It is unclear as to the source of information for the January 2010 examiner's notation about the Veteran's past coronary bypass surgery. In the Veteran's February 2013 VA Form 9, the Veteran's attorney requests that Veteran's previous diagnosis of partial aortic occlusion be "evaluated in correlation with ischemic heart disease." It is unclear as to whether partial aortic occlusion is related to ischemic heart disease under 38 C.F.R. § 3.309(e). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide or authorize the release of records from Dr. Ivers, as well as any other records, not already of record, that are relevant to his claim. 2. Contact the Social Security Administration and request a copy of the records, including medical records, that were considered in adjudicating the claim for disability benefits. 3. All attempts to secure the above-referenced evidence must be documented in the claims file. If, after making reasonable efforts to obtain named non-VA records the VA is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. Obtain any relevant VA medical records dating from June 2010 that have not yet been associated with the claims folder or Virtual VA. 5. After completing the steps described above, provide the Veteran's VA claims folder to the VA examiner who conducted the January 2011 exam, if available. The original examiner, or another qualified examiner, should review the claims folder. Following review of the claims file, the examiner should clarify whether the Veteran has a heart condition. The examiner should determine if the Veteran has ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease [including coronary spasm] and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). If the examiner determines that an examination is required to provide the requested information, then one should be scheduled. The examiner should opine whether the Veteran's diagnosed partial aortic occlusion constitutes ischemic heart disease. Please provide a complete explanation for the opinion. If not, the examiner should opine whether it is as least as likely as not (a probability of 50 percent or greater) that the Veteran's partial aortic occlusion began in or is related to service, to include presumed herbicide exposure therein. If the Veteran has a non-ischemic heart disorder, the examiner should opine whether it is as least as likely as not (a probability of 50 percent or greater) that the heart disorder began in or is related to service, to include presumed herbicide exposure therein. A complete rationale must be provided for all opinions. 6. Ensure the development outlined above has been accomplished, and then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order 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).