Citation Nr: 1338263 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 12-20 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a heart disorder, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1972. He also had a period of service in the Naval Reserve from September 1972 until September 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which declined to reopen a claim for service connection for a heart condition previously claimed as chest pain. The Veteran was previously denied service connection for chest pains in a now-final March 1976 rating decision. His current claim is for his heart condition, and treatment records reveal that he has been diagnosed with coronary artery disease, cardiomyopathy, and congestive heart failure. As the previous claim was for a symptom, namely chest pain, and the current evidence indicates that the Veteran has diagnosed heart conditions, the Board will adjudicate the current claim, as recharacterized above, de novo. See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996). The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in January 2013. A transcript is of record. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. It appears that the Veteran is attempting to reopen a claim for service connection for posttraumatic stress disorder. See September 2012 VA Form 21-4138. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Additional development is needed before the Board can adjudicate the claim. The Veteran seeks service connection for a heart condition. One theory of entitlement involves his claim that he was exposed to herbicides while stationed in Guam. The Veteran's service personnel records show that he was on the U.S.S. Proteus from September 1969 to January 1971 when he was transferred to the U.S.S. Sperry. The Proteus arrived in Apra Harbor, Guam, in November 1964, and she "continued to operate at Apra Harbor and in the Pacific for the next five years, and remains (sic) with the Pacific Fleet into 1970." See Dictionary of American Naval Fighting Ships. Therefore, it does appear that the Veteran was on board the U.S.S. Proteus at Guam and in the Pacific from September 1969 into 1970. The Veteran claims that he was exposed to herbicides when he volunteered in a Guam hospital to take care of wounded Vietnam Veterans. See August 2010 VA Form 21-4138; February 2011 statement in support of claim. However, his personnel records show that he was a Seaman Apprentice and then advanced to Seaman in September 1970 while on the Proteus. There is no indication in his personnel records of any medical training or of any assignment to a hospital on shore. Nevertheless, since this case must be remanded for other reasons, the Veteran should be asked on remand to provide more specific information about the nature of his volunteer assignment, including the name of the hospital and whether it was a military hospital. The VA Adjudication Procedure Manual provides that specific development must be taken to verify herbicide exposure on a factual basis in locations other than in the Republic of Vietnam or the Korean Demilitarized Zone (DMZ). See M21-1MR, Part IV.ii.2.C.10. It does not appear that the required development was undertaken by the RO. This must be rectified on remand. Another theory of entitlement raised by the Veteran is his assertion that he was misdiagnosed in service with a gastrointestinal disorder, the symptoms of which are similar to heart problems. Service treatment records from his period of active duty service (September 1968 to September 1972) do document gastrointestinal problems. None record any problems related to chest pain, although an October 1971 sick call treatment record indicates that the Veteran reported an occasional reflux feeling in what appears to be across his chest. A September 1972 PA chest film was reported to be within normal limits. See report of medical examination. As noted in the Introduction, the Veteran had a period of service in the Naval Reserve from September 1972 until September 1974. At the time of an October 1972 report of medical history, the Veteran denied pain or pressure in chest, palpitation or pounding heart, and heart trouble. He was discharged from the Naval Reserve on September 26, 1974. See Record of Discharge from the U.S. Naval Reserve (Inactive). Prior to his discharge, the Veteran was admitted to Washington Adventist Hospital on September 20, 1974, with complaint of substernal chest pain for less than 12 hours. A family history of heart disease was noted, but the Veteran "himself has had no problems along this line so far." Electrocardiogram (EKG) showed early repolarization but no other pathology. The final diagnosis included early repolarization on EKG with no evidence of myocardial infarction. The Veteran was discharged from Washington Adventist Hospital on September 23, 1974. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21-24); 38 C.F.R. § 3.6 (2013). Service connection may accordingly be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA. See 38 U.S.C.A. §§ 101, 106, 1110, 1131 (2013). Given that the Veteran sought private treatment related to complaints of substernal chest pain during his Naval Reserve service, efforts should be made on remand to determine whether the Veteran was on ACDUTRA during his September 1974 admission. An examination should also be obtained to ascertain the etiology of the Veteran's current heart disorder(s), diagnosed as coronary artery disease, cardiomyopathy and congestive heart failure, to include whether any current heart disorder had its onset during active service (September 1968 to September 1972). The examiner should also address whether the Veteran's September 1974 diagnosis of early repolarization on EKG with no evidence of myocardial infarction was an early manifestation of any current heart disorder, to include the diagnosed coronary artery disease, cardiomyopathy and/or congestive heart failure. The Veteran has submitted a November 2010 letter from the Social Security Administration (SSA) indicating that he is in receipt of benefits from that agency. The medical and legal documents pertaining to the Veteran's application for SSA benefits have not been associated with the claims folder. The possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). On remand, efforts should be made to obtain these records. 38 C.F.R. § 3.159(c)(2) (2013). There are several references in the claims folder to the Veteran receiving treatment at the VA Medical Center (VAMC) in Washington, DC, and he has submitted some documents from this facility. Despite these references, no effort has been made by VA to obtain his complete treatment records from this facility. This must be rectified on remand and is especially important given the fact that he apparently receives treatment related to his heart condition there. In that vein, the Board notes an August 2010 letter from a cardiologist at this facility who indicates that according to their records, the Veteran has carried a diagnosis of coronary artery disease at least since the 1980s. Given the foregoing, the request for records from the VAMC in Washington, D.C., should include from 1980 to the present. It also appears that there may be outstanding treatment records from the VAMC in Martinsburg, West Virginia. On remand, efforts should be made to obtain treatment records dated prior to September 2005 and since July 2012. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to provide more specific information about the nature of his volunteer assignment caring for wounded Vietnam soldiers on Guam, such as the name of the hospital he claims he was assigned to and whether it was a military hospital. 2. Undertake the development required to verify herbicide exposure in Guam from September 1970 through January 1971, the time during which the Veteran was aboard the U.S.S. Proteus and during which the Proteus was operating at Apra Harbor, Guam, and with the Pacific Fleet. See M21-1MR, Part IV.ii.2.C.10. 3. Request all medical and legal documents pertaining to the Veteran's application(s) for SSA disability benefits. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 4. Request the Veteran's complete records from the VAMC in Washington, DC, dated since 1980. If any of these records are in a retired or archived status, efforts should be made to acquire the records. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 5. Request the Veteran's treatment records from the Martinsburg VAMC dated prior to September 2005 and since July 2012. If any of the records dated prior to August 2005 are in a retired or archived status, efforts should be made to acquire the records. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 6. Contact the U.S. Naval Reserve to ascertain whether the Veteran was performing ACDUTRA between September 20, 1974, and September 23, 1974, and to obtain the Veteran complete treatment records from his service in the Naval Reserve. If no records or information can be found, indicate whether the records or information does not exist and whether further efforts to obtain the records or information would be futile. Document all efforts made in this regard. 7. When the foregoing development has been completed, schedule the Veteran for an appropriate VA examination, preferably with a cardiologist. The examiner must review the claims file and all relevant electronic medical records. Any indicated studies are to be performed. The examiner should identify all current disorders of the heart and provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current heart disorder, or the previously diagnosed coronary artery disease, cardiomyopathy and/or congestive heart failure, had its onset during active service (September 1968 to September 1972) or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should address the Veteran's assertions that he was misdiagnosed during active duty service with a gastrointestinal disorder, the symptoms of which are similar to heart problems. The examiner is also asked to address whether the Veteran's September 1974 diagnosis of early repolarization on EKG with no evidence of myocardial infarction was an early manifestation of any current heart disorder, to include the previously diagnosed coronary artery disease, cardiomyopathy and/or congestive heart failure. A comprehensive report, including complete rationales for all conclusions reached, must be provided. 8. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 9. Finally, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matters 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 U.S. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).