Citation Nr: 1336694 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 12-09 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a variously diagnosed heart disability. REPRESENTATION Appellant represented by: J.S.Berry, Esq. ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1966 to May 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Muskogee, Oklahoma Department of Veteran Affairs (VA) Regional Office (RO). The rating decision on appeal specifically adjudicated and denied service connection for atrial fibrillation. As the Veteran's claim was not so limited (he sought service connection for a "heart condition"), because the record shows other cardiac diagnoses (including congestive heart failure), and in light of the holding of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009), the issue is recharacterized as stated on the preceding page. The appeal is being REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action on his part is required. REMAND On review of the record, the Board finds that development of the evidence is necessary for VA to meet its VCAA mandated duty to assist the claimant. The Veteran has not been afforded a VA examination in connection with this claim. Under 38 C.F.R. § 3.159(c)(4), an examination or opinion is necessary if the evidence of record: (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury or disease in service; and (c) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (d) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court has held that requirement (c), that the evidence indicates that a disability may be related to service, is a "low threshold" requirement. See McLendon v. Nicholson, 20 Vet. App. 79. 83 (2006). The Veteran served in Vietnam during the Vietnam era and is entitled to consideration of his claim under the presumptive provisions of 38 U.S.C.A. § 1116. Diseases which may be service connected on a presumptive basis under § 1116 include ischemic heart disease. The record does not include a medical opinion as to whether any heart diagnosis shown constitutes ischemic heart disease. Thus, a VA examination to obtain such opinion is necessary. Furthermore, any outstanding records of evaluations or treatment the Veteran has received for cardiac disability are pertinent evidence which should be secured. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for heart disability records of which are not already associated with the record, and to provide the releases necessary for VA to secure records of any such private evaluations or treatment. The RO should obtain complete records of all such evaluations and treatment from all sources identified. If any records requested are unavailable, the reason for their unavailability must be explained for the record. 2. Thereafter, the RO should arrange for the Veteran to be examined by a cardiologist or internist to determine the nature and likely etiology of his current heart disabilities. The entire record must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed appropriate should be completed. Based on an examination and interview of the Veteran and review of the claims file, the examiner should provide an opinion that responds to the following: (a) Please identify, by medical diagnosis, each heart disability entity found, specifically indicating whether any diagnosis qualifies as an ischemic heart disease. (b) As to each diagnosed heart disability entity (other than an ischemic heart disease), please indicate when such was first manifested, and identify the most likely etiology, specifically including whether such is at least as likely as not (a 50 percent or better probability) related to the Veteran's active service. (c) As to any heart disability that is determined to have been manifested prior to service, please indicate whether there is any evidence suggesting that it increased in severity during service. The examiner is asked to explain the rationale for all opinions. If a diagnosed heart disability is deemed unrelated to service, the examiner should identify the etiology considered more likely (and explain why that is so). 3. The RO should then review and readjudicate the claim of service connection for a heart disability. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond before the claims files are returned to the Board. 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 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). _________________________________________________ GEORGE R. SENYK 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) (2013).