Citation Nr: 1336997 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 12-06 472 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a heart disorder, to include congestive heart failure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to March 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied service connection for congestive heart failure. After the decision was entered, the case was transferred to the jurisdiction of the RO in Atlanta, Georgia. In August 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing held in Washington, D.C. A transcript of that hearing has been prepared and associated with the record on appeal. During the hearing, the Veteran submitted additional evidence in support of his appeal, together with a waiver of initial review of that evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such evidence. During the hearing, the undersigned also agreed to hold the record open for a period of 60 days for submission of additional evidence. In August 2012, the Veteran, through his representative, submitted additional evidence with a waiver of initial review of that evidence by the AOJ. Consequently, the Board may properly consider that evidence as well. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2013). VA is also required to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). A medical examination and/or opinion is deemed "necessary" if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). During the August 2012 Board hearing, the Veteran testified that he was in receipt of disability benefits from the Social Security Administration (SSA) as a result of impairment attributable to congestive heart failure. Thus far, it does not appear that any attempt has been made to obtain a complete copy of the medical records underlying the SSA's award. Because the records from SSA could contain information pertinent to the issue on appeal, efforts should be made to procure them. See, e.g., Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). With respect to the need to assist the Veteran in obtaining other evidence, the Board notes that an August 2012 letter from a cardiologist, K. Taylor, M.D., reflects that the Veteran has been under Dr. Taylor's care since 2004. A November 2005 medical record reflects that the Veteran was hospitalized earlier that month following a syncopal episode. In addition, the Veteran has testified that he received treatment from a "lung specialist" from approximately 2000 to 2003, for symptoms later determined to be due to congestive heart failure. Presently, the claims file contains records from Dr. Taylor's practice (most recently known as Piedmont Heart) dated from July 2004 to November 2005, and from August 2011 to December 2011. However, it does not contain any records from Dr. Taylor dated between November 2005 and August 2011, or after December 2011. Nor does it contain any records of the Veteran's reported treatment by a lung specialist from 2000 to 2003, or of his hospitalization for syncope in November 2005. Because these records, if procured, could contain information bearing on the outcome of the Veteran's appeal, efforts should be made to obtain them. See, e.g., 38 C.F.R. § 3.159(e)(2) (2013) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). With respect to the need for a VA examination and opinion, the Board notes the claims file contains evidence that the Veteran has been diagnosed with congestive heart failure. The evidence shows that he complained of chest pain on multiple occasions during service, and he has offered testimony to the effect that he experienced further, similar episodes of pain in 1986 or 1987, and that they have intermittently recurred ever since. Under the circumstances, the Board finds that the requirements for obtaining a VA examination and opinion have satisfied. For the reasons stated, this case is REMANDED for the following actions: 1. Ask the Veteran to provide releases for relevant records of treatment from Dr. Taylor dated between November 2005 and August 2011, and after December 2011, from the lung specialist who reportedly treated the Veteran from 2000 to 2003, and from the hospital where he was treated for syncope in November 2005, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary releases, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. If any records identified by the Veteran as relevant are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Ask the SSA to provide copies of any records in its possession pertaining to its consideration of the Veteran's application for SSA disability benefits, to include any medical records considered in making that award. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). If the records are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. After all of the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an appropriate examination for purposes of obtaining an opinion with respect to the likely etiology of his heart disorder. After reviewing the claims file, and conducting any testing deemed necessary, the examiner should offer an opinion regarding the following inquiries: (A) Identify all currently diagnosed heart disorders. (B) For each diagnosed heart disorder, is it at least as likely as not (i.e., 50 percent or more probable) that such had its onset in service, or can otherwise be attributed to service? (C) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran manifested cardiovascular-renal disease within one year of his service discharge in March 1985? If so, what were the manifestations? In offering such opinions, the examiner should discuss the likelihood that the Veteran had a cardiac disability during service that was misdiagnosed, as the Veteran contends. The examiner should consider the significance, if any, of entries in service treatment records dated in October 1974, wherein the Veteran complained of feeling tired, with insomnia and loss of weight; in February 1975, wherein the Veteran complained of a 3-month history of intermittent retrosternal chest pain with movement or deep inspiration; in May 1977, when he complained of, among other things, "spitting up blood"; in August 1978, when he complained of pain on the left side of his upper back and chest, worse with inspiration; in June 1983, when he complained of left upper chest pain; and in November 1984, when he complained of chest pain, together with a "bad cold" and restricted breathing. The examiner should also consider the Veteran's statements and testimony to the effect that he had further, similar episodes of chest pain after service, beginning in 1986 or 1987 (which he self treated), and intermittently thereafter, up until the time that he was discovered to be suffering from congestive heart failure. A complete rationale for all opinions should be provided. 4. 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 this appeal. 38 C.F.R. § 20.1100(b) (2013).