Citation Nr: 1335988 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-04 664 ) DATE ) ) On appeal from the Department of Veterans Affairs(VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for a heart disorder other than the already service-connected mitral regurgitation, including coronary artery disease, and to include as secondary to mitral regurgitation. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from March 1961 to July 1964. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2007 rating decision in which the RO denied service connection for leaky heart valve, murmur and denied the petition to reopen a claim for service connection for coronary artery disease. In March 2008, the Veteran filed a notice of disagreement (NOD). The RO issues statement of the case (SOC) in January 2009. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2009. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A May 2009 letter informed the Veteran that his hearing was scheduled in June 2009. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). In April 2010, the Board granted the petition to reopen the claim for service connection for coronary artery disease and remanded the Veteran's claims for service connection for leaky heart valve, murmur and for coronary artery disease, on the merits, to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing the requested development, in an October 2010 rating decision, the AMC granted service connection and assigned an initial 0 percent (noncompensable) rating for mitral regurgitation (claimed as leaky heart valve, murmur), effective from July 24, 2006; this action represents a full grant of that benefit sought. However, the AMC continued to deny the claim for service connection for coronary artery disease (as reflected in an October 2010 supplemental SOC (SSOC)) and returned this claim to the Board for further appellate consideration. In January and February 2011, the Veteran submitted additional evidence directly to the Board without a waiver of initial RO consideration of the evidence. In April 2011, the Board remanded the claim for service connection for coronary artery disease for additional development. The Board also remanded the issue of entitlement to an initial, compensable rating for mitral regurgitation, noting that the RO must furnish the Veteran and his representative an SOC with respect to that issue. The RO issued a July 2013 SOC for the issue of entitlement to an initial, compensable rating for mitral regurgitation. The Veteran did not file a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) following that SOC. As such, that issue is not currently before the Board. After completing additional development, the RO issued a SSOC in July 2013 regarding the claim for entitlement to service connection for coronary artery disease. The RO continued the denial of that claim (as reflected in a July 2013 supplemental SSOC), and returned this matter to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that some of the documents in the Virtual VA paperless claims file, i.e., VA treatment records, are relevant to the issue on appeal and are not duplicative of the evidence in the paper claims file. However, as such evidence was considered by the RO in its preparation of the July 2013 SSOC, there is no prejudice to the Veteran in the Board proceeding to a decision, at this juncture. For the reasons expressed below, the matter on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND Unfortunately, the Board's review of the record reveals that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In the present case, the Veteran contends that service connection is warranted for a heart disorder, including coronary artery disease, and including as secondary to his service-connected mitral regurgitation (claimed as leaky heart valve, murmur). In the April 2010 and April 2011, the Board remanded this matter to obtain cardiovascular examinations and etiology opinions. As noted in the April 2011 decision, the Board found that the September 2010 VA examination report failed to adequately resolve the question of whether the Veteran's current coronary artery disease had its onset in or is medically related to service. The Board found that although the examiner opined that the Veteran's coronary artery disease was not medically related to the in-service diagnosis of heart murmur, he did not provide any rationale or support for this conclusion. The RO subsequently obtained a February 2012 VA examination. The February 2012 VA examiner similarly opined that the Veteran's coronary artery disease was not medically related to the in-service diagnosis of heart murmur; however, she also did not provide any rationale or support for this conclusion. Additionally, the February 2012 VA examiner noted additional diagnoses of heart disorders, including arteriosclerotic heart disease and supraventricular arrhythmia, but did not provide any opinion (in regards to the arteriosclerotic heart disease) or rationale (in regards to the supraventricular arrhythmia) on whether any of the heart disorders were related to service or the service-connected mitral regurgitation. The VA examiner also did not provide any opinions as to whether the Veteran has a heart disorder that is aggravated by his service-connected mitral regurgitation. The Board further notes that the VA examiner did not have the opportunity to review the Veteran's VA medical records, as the RO did not associate them with the Veteran's Virtual VA folder until after the VA examination had been performed. Hence, the RO should obtain further VA medical opinion to address these matters. Consistent with the above discussion, the RO should forward the claims file to the examiner who provided the February 2012 opinion regarding the claimed heart disability for a supplemental opinion. The RO should only arrange for further examination of the Veteran in regards to this claim if the original examiner is no longer available or if such examination is deemed necessary by the examiner. If warranted , the RO should arrange for the Veteran to undergo another VA examination of his claimed heart disorder, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the reopened claim See 38 C.F.R. § 3.655(b) (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to a scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to obtain additional medical information in this appeal, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As for VA records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in East Orange, New Jersey, from August 2002 through January 2013. The claims file also includes records from the VAMC in Tampa, Florida, from December 2008 through December 2009. More recent records from these facilities likely exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain pertinent records of evaluation and/or treatment of the Veteran from the VAMCs in East Orange, New Jersey, dated since January 2013, and from the VAMC in Tampa, Florida, dated since December 2009, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding, pertinent private medical records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following actions: 1. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran, including from the East Orange VAMC (since January 2013), and the Tampa VAMC (since December 2009). Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file and the RO has provided the appropriate notice, arrange for the medical provider who conducted the February 2012 VA heart conditions examination for an addendum report. The Veteran's entire claims file, to include a complete copy of this REMAND and copies of pertinent records from Virtual VA must be made available to the examiner. The medical opinion report must include discussion of the Veteran's documented medical history and assertions. The examiner should also specifically review evidence not explicitly considered previously-to include all VA medical records. The physician should clarify the diagnosis(es) of the Veteran's current heart disorder(s), other than his already service-connected mitral regurgitation. Then, for each diagnosed heart disorder (other than the already service-connected mitral regurgitation), provide an opinion consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability (a) had its onset during his active duty service, or is otherwise medically related to service; or, if not (b) was caused or is aggravated (worsened beyond natural progression) by the Veteran's service-connected mitral regurgitation. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinion, the physician should consider and discuss all pertinent medical and lay evidence, to include the multiple medical articles submitted by the Veteran; The physician should also note and discuss the findings of the other medical opinion providers, including: (1) the May 2008 letter by Dr. J. Orlando (suggesting that his heart condition is as likely as not to be related to military service and/or diagnosis rendered during care while performing military service), (2) the April 2011 letter by Dr. I Girgis (suggesting mitral regurgitation could have led to the development of premature ventricular complexes) and (3) the September 2010 and February 2012 VA examination reports. If the February 2012 VA examiner is unavailable, or further examination of the Veteran is deemed necessary, the RO should arrange for the Veteran to undergo VA cardiovascular examination, by an appropriate physician, to obtain opinions responsive to the questions and comments noted above. The provider should set forth all examination findings (if any), along with a complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of pertinent evidence (to particularly include all evidence added to the claims file since the RO's last adjudication of the claims) and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, along with reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2013). _________________________________________________ JACQUELINE E. MONROE 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).