Citation Nr: 1337253 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-10 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for heart disability, including hypertrophic obstructive cardiomyopathy and idiopathic subaortic stenosis. 2. Entitlement to a total rating based on individual unemployability. REPRESENTATION The Veteran is represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from May 1983 to May 1987 and from February 1991 to June 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office located in Boise, Idaho (RO). The Veteran provided testimony at an October 2012 Board hearing with the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In support of his service connection claim, the Veteran submitted three opinions from VA medical professionals. In a June 2010 opinion, Matthew L. Rice, D.O., ABFM, opined that the Veteran "indisputably" had obstructive hypertrophic cardiomyopathy during his active duty and that the disability "more than likely" worsened during such service. In June and September 2010 letters, Michael Pham, M.D., MPH, opined that hypertrophic obstructive cardiomyopathy is a genetic condition with disease expression "typically" occurring during childhood and adolescence. As such, Dr. Pham opined that the Veteran's hypertrophic obstructive cardiomyopathy "likely" pre-existed his active duty. Further, Dr. Pham stated that the Veteran's hypertrophic obstructive cardiomyopathy "could have" been aggravated by or was "likely" aggravated by his active duty. First, neither Dr. Rice nor Dr. Pham provided underlying rationales for the opinions rendered in June 2010 and September 2010. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). Second, there was no indication that the Veteran's service treatment records were made available to and reviewed by either Dr. Rice or Dr. Pham in conjunction with the rendered opinions. These records included evidence that contradicted the Veteran's reported inservice symptoms, evidence upon which the doctors based their opinions, at least in part. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Finally, Dr. Pham opined in June 2010 that the Veteran's hypertrophic obstructive cardiomyopathy "could have" been aggravated by his active duty, which is too equivocal to be probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (holding that a doctor's statement framed in terms such as "could have been" is not probative). Based on the above, the Board finds that the June and September 2010 opinions rendered by Dr. Rice and Dr. Pham are not adequate for purposes of adjudicating the Veteran's claim. The Veteran was not provided a VA examination pursuant to his claim of entitlement to service connection for heart disability, including hypertrophic obstructive cardiomyopathy and idiopathic subaortic stenosis. Generally, a VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the evidence of record included current diagnoses of heart disability, including hypertrophic obstructive cardiomyopathy and idiopathic subaortic stenosis. Further, the Veteran asserted that he experienced inservice exercise intolerance, manifested as shortness of breath, fatigue, not feeling well, and an inability to keep up with fellow service members. For purposes of determining whether providing a VA examination is required in order for VA to satisfy its duty to assist, the Board finds that the Veteran's statements represent competent evidence of inservice symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). Although the Board has determined that the June and September 2010 opinions rendered by Dr. Rice and Dr. Pham are inadequate for purposes of adjudicating the Veteran's claim, the Board finds that they are sufficient to indicate an association between the Veteran's claimed inservice symptoms and his current heart disability. Finally, beyond the June and September 2010 opinions delivered by Dr. Rice and Dr. Pham, the evidence of record was negative for competent evidence addressing the etiological relationship between the Veteran's heart disability and his active duty. Thus, the Board finds that the evidence of record is insufficient to make a decision with respect to the Veteran's service connection claim. Consequently, the Board finds that a remand is required in order provide the Veteran a VA examination. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 83. The evidence of record included a June 2010 opinion that the Veteran is unemployable due to his heart disability. Generally, all issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The issue of entitlement to TDIU is intertwined with the issue of entitlement to service connection for heart disability, including hypertrophic obstructive cardiomyopathy and idiopathic subaortic stenosis, because a decision on the latter claim may have an impact on the former claim. Accordingly, the claim of entitlement to TDIU is remanded for contemporaneous adjudication. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA examination. The claims file must be made available to the examiner in conjunction with the examination. All indicated tests and studies must be accomplished. The examiner is then requested to offer an opinion as to whether it is clear and unmistakable (obvious and manifest) that current heart disability pre-existed the Veteran's first period of active duty, to include specific consideration of the Veteran's service entrance examination and whether any present heart disability necessarily pre-existed the Veteran's first period of active duty because it is genetic in nature. In so doing, the examiner must discuss the June and September 2010 opinions rendered by Dr. Rice and Dr. Pham. If the examiner answers in the affirmative, the examiner must then provide an opinion as to whether it is clear and unmistakable (obvious and manifest) that the Veteran's pre-existing heart disability was not aggravated by his active duty. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. If the examiner determines that there was no clear and unmistakable evidence that current heart disability pre-existed the Veteran's active duty; OR if the examiner determines that there was clear and unmistakable evidence that current heart disability pre-existed the Veteran's active duty, but that there was no clear and unmistakable evidence that the pre-existing heart disability was not aggravated, the examiner must then provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any present heart disability, including hypertrophic obstructive cardiomyopathy and idiopathic subaortic stenosis, was incurred in or due to either period of the Veteran's active duty. The examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale must be provided for any opinion offered. 2. The RO must notify the Veteran that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). 3. Once the above actions have been completed, the RO should re-adjudicate the Veteran's claims. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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).