Citation Nr: 1335775 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-12 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Service connection for a cardiac disorder, to include status post modified Bentall procedure, mitral/tricuspid valve repair, to include as due to fuel and chemical exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. As the Veteran moved during the pendency of the appeal, jurisdiction of the claims file has transferred to the RO in New Orleans, Louisiana. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In this regard, the Veteran's service connection claim on appeal was previously characterized as entitlement to service connection for status post modified Bentall procedure, mitral/tricuspid valve repair; however, in light of Brokowski, the Board has recharacterized the issue as a claim for entitlement to service connection for a cardiac disorder, to include status post modified Bentall procedure, mitral/tricuspid valve repair. In August 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the New Orleans RO. A transcript of that hearing is of record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The Board has reviewed the Veteran's Virtual file, but it does not contain any evidence not contained in the paper file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that VA fulfills its duties to notify and assist the Veteran in order to create a complete record upon which to decide his claim for service connection so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran claims that he is entitled to service connection for a cardiac disorder, to include status post modified Bentall procedure, mitral/tricuspid valve repair, which he alleges is due to his in-service exposure to fuel and chemicals, to include Jet fuel, benzene, MEK, and MIBK as noted in his service records. In this regard, the Veteran testified at his Board hearing that, through his service as an aircraft field systems mechanic, he was exposed to fuel and chemicals, which were absorbed through his skin as well as inhaled. In this regard, the Veteran's service treatment records reflect that he worked with fuel, identified as JP8, and, in July 1985, he noted eruptions on his arms and was diagnosed with macular lesions and an acute sensitive reaction. Contact dermatitis was also noted. He further alleged that, while on active duty, he had difficulty breathing abnormal pulmonary function testing. In this regard, a May 1988 record reflects a restrictive defect. The Veteran contends that such respiratory difficulty may indicate the onset of his cardiac disorder. The Board initially finds that a remand is necessary to obtain outstanding pertinent medical evidence. Specifically, the Veteran testified at the August 2012 hearing that he received medical treatment for his heart condition from the San Antonio VA Medical Center (VAMC), but no VA treatment records appear in the claims file. Further, the Veteran has reported receiving treatment for his heart condition from Duke University, but the last treatment note from that facility is dated January 27, 2009, which is more than four years ago, and does not indicate that treatment had ceased. Private medical records within the claims file reflect that he also received pertinent treatment in early 2008 from "an urgent care clinic" and "a cardiologist in Lynnwood," but no records from either source appear in the record. Therefore, the AOJ should obtain any outstanding records of VA treatment, provide the Veteran with authorization forms for the release of any pertinent private records, and associate any available records with the claims file before appellate review proceeds. An August 2008 treatment note from Duke University further observes that the Veteran became eligible for disability income from the Social Security Administration (SSA) in December 2008. As an award of disability benefits through the SSA may have generated evidence relevant to his claim, the AOJ also must take appropriate steps to determine if pertinent documents are available from the SSA. See Murincsak v. Derwinski, 2 Vet. App. 363, 372-3 (1992). The Board also finds that a clarifying medical opinion is needed. VA afforded the Veteran a VA heart disorders examination in May 2009. That examiner opined that there was "no basis in medical fact to assert that exposure to any work place toxins caused or aggravated the Veteran's cardiac condition." Although the examiner referred to the possibility of aggravation, he did not address whether any cardiac condition pre-existed service, and the Board observes that some private records reflect that the Veteran's current heart condition may have been precipitated by "chronic aortic insufficiency" and refer to a family history of heart transplant. See Duke Hospital note dated July 30, 2008. Further, it is not clear from the claims file if the examiner reviewed all pertinent service records. The examination report refers only to two service records that were "tabbed" by the RO, but the Board notes multiple records of potential relevance: of note, a May 1981 Reference Audiogram that remarks on "pulm function" and a March 1986 telephone medical consultation reflects that the Veteran reported a respiratory reaction from presence in the "fuel cell." Therefore, an addendum opinion addressing all the relevant evidence, and the possibility of a pre-existing heart condition, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Note that the Veteran has reported receiving treatment from the VAMC in San Antonio, but, during the pendency of the appeal, has also lived in North Carolina and Louisiana. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Provide the Veteran with an opportunity to identify or submit any additional private medical evidence that is not of record. Send him the necessary authorizations for the release of any private treatment records not currently on file. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. The records requests should include, but are not limited to, records from: a. Duke University Hospital, generated after January 27, 2009; b. Any urgent care facility attended in March 2008; and c. Any cardiologist in Lynnwood visited in March 2008; 3. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After all outstanding records have been associated with the claims file, the file should be returned to the May 2009 VA heart disorders examiner to provide an addendum opinion as to the nature and etiology of the Veteran's cardiac disorder. If the May 2009 VA examiner is not available, the claims file should be forwarded to a similarly qualified examiner to provide the requested opinion. The entire claims file, to include a copy of this Remand, must be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted, to include an examination, if deemed necessary by the reviewing examiner. Although the examiner has an obligation to review the entire claims file, his (or her) attention is drawn to the complete service treatment records, private treatment records reflecting the medical opinion that the Veteran's current heart disability results from chronic aortic insufficiency, and other private records referring to a respiratory infection in February/March 2008. The examiner must address the following matters: (i) Identify all diagnosed cardiac disorders. (ii) Is there clear and unmistakable evidence that any cardiac disability pre-existed the Veteran's entrance to service in September 1980? (a) If so, is there clear and unmistakable evidence that such disability did not undergo an increase in the underlying pathology during service? If there was an increase in the underlying pathology during service, was such increase clearly and unmistakably due to the natural progress of the disease? (b) If not, is it at least as likely as not that any current heart disability is directly related to service, including the Veteran's in-service exposure to fuel and chemical fumes? The opinions should reflect consideration of the Veteran's lay history, to include his testimony at the August 2012 hearing that he has experienced some shortness of breath since "the mid-90s." The opinions should also address whether the Veteran's in-service respiratory difficulties were indicative of the onset of his cardiac disorder. Citations must be provided for any referenced medical research/authorities and the rationale for any opinion must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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. 2013). _________________________________________________ A. JAEGER 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).