Citation Nr: 1338600 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-25 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a heart disorder, to include ischemic heart disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from November 1962 to October 1970, and from March 1971 to June 1983. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The August 2007 rating decision denied service connection for heart valve regurgitation. In March 2010, the Veteran testified before the undersigned Veterans Law Judge during a hearing at the RO. A transcript of that hearing is of record. In a June 2010 decision, the Board denied the Veteran's claim for entitlement to service connection for a heart disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Memorandum Decision, the Court vacated the Board's decision denying service connection for a heart disability and remanded the matter for further proceedings consistent with its decision. In light of the Court's decision, the findings found therein, and following an extensive review of the evidentiary record, the Board in March 2012 remanded the appeal so that further development of the evidence could be undertaken. The Board found in April 2013 that there had not been substantial compliance with the development sought as part of the March 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). Subsequently, the Board again remanded the claim in April 2013 so that further evidentiary development could be accomplished. There has essentially been substantial compliance with the mandates set out in the most-recent April 2013 remand. See Stegall. Unfortunately, to satisfy certain due process concerns, another remand, under the facts presented, is necessary. This instant remand was processed using the Veteran's Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the VBMS file or are irrelevant to the issue on appeal. 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 Unfortunately, the Board finds that the claim must be again remanded for additional development. In April 2013, the Board remanded the claim so that the VA physician who provided certain medical opinions in April 2012 could "clarify" her earlier-supplied opinions. The April 2013 remand included certain specifically-identified instructions for the VA physician. Review of the May 2013 VA medical report received from the VA physician shows that these instructions were sufficiently followed. In that respect, as noted above, compliance with the April 2013 is shown to have been obtained. Stegall. In pertinent part, the VA physician in May 2013 opined that the Veteran "does not have any heart disability." She added that "organic heart disease" was not found. However, May 2013 private medical records, received by VA in August 2013, include diagnoses of hypertension; chest tightness (small area of mild ischemia in the inferior wall injection fraction 69 percent), with symptomatic exertional chest pain per Class III Canadian classification; "PVD" with claudication, severe distal left superficial femoral artery stenosis; and unilateral carotid artery disease. Later that month, the Veteran underwent left cardiac catheterization, angioplasty and stenting. The May 2013 private medical findings would appear to show that the Veteran has some heart disability, in stark contrast to the May 2013 VA opinion that the Veteran does not have a heart disability. The VA examiner should review the recently submitted records and provide an addendum opinion. The recently submitted private medical records have not been considered by the agency of original jurisdiction and there is no waiver of consideration of the evidence by the appellant or representative. Since the claim is being remand, that evidence should be reviewed in a supplemental statement of the case (SSOC). 38 C.F.R. §§ 19.37, 20.1304 (2013). The above-cited May 2013 private medical evidence includes a finding of "mild ischemia." As part of his May 2007 claim seeking service connection for a heart disability, the Veteran asserted that he served in Vietnam in 1966 and 1967. As such, if ischemic heart disease is found, consideration of entitlement to service connection for ischemic heart disease under 38 C.F.R. §§ 3.307, 3.309 should be considered. To that end, the Veteran's service personnel file shows that in 1966 and 1967 he was stationed aboard the USS Harnett County. A DD 214 shows that the Veteran served aboard the CGC Bittersweet (WLB 389). This service assignment is, however, not notated within his service personnel file. The evidence of record as to the question of whether the Veteran has the requisite Vietnam-related service to be entitled to the presumptive regulation concerning ischemic heart disease is inconclusive and efforts should be undertaken to verify whether he has the requisite service. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any additional information regarding his service within the Republic of Vietnam, including inland waterways. He should specifically be asked to inform VA of the name(s) of the ship(s) he served on during this time. A record of such request shall be associated with the file. The Veteran is advised that his cooperation in providing all information necessary to verify his service in the Republic of Vietnam is essential. 2. After completion of the foregoing, take appropriate steps to confirm whether the Veteran had service within the Republic of Vietnam. 3. Thereafter, provide the record (i.e. the paper claims file and any medical records contained in VBMS, Virtual VA, CAPRI and AMIE) and a copy of this remand to the VA physician who supplied the May 2013 VA addendum report/opinion. If that examiner is unavailable, the evidentiary record must be forwarded to another VA cardiologist to obtain an opinion. If that examiner determines that an examination is warranted, one should be scheduled. The VA physician, after specifically commenting on the pertinent medical evidence of record -- and particularly the private medical evidence dated in May 2013 --should answer the following questions: a) Does the Veteran currently have a diagnosed heart disability? If so, please specify the exact diagnoses, to include whether he has ischemic heart disease. (b) If the answer to (a) is yes, is it at least as likely as not (at least a 50 percent probability) that the currently diagnosed heart disability was incurred in the military; is related to the in-service abnormal heart findings; or is attributable to any other incident of his military service. (c) If the answer to (a) is no, the examiner should specifically reconcile the conflicting tests both in the service treatment records AND after service showing various heart diseases and, in contrast, ruling out heart disease. The examiner should specifically address the May 2013 private medical records which diagnosed a mild ischemia and subsequent angioplasty and stenting. A clear rationale for all opinions is necessary -- to include providing citations to pertinent factual findings and in-service medical history -- and a discussion of the medical principles involved would be of considerable assistance to the Board. In addition, the examiner must explain the basis for any and all provided opinions. 4. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action must be taken. See Stegall. 5. Following completion of all indicated development, the RO/AMC should readjudicate the issue on appeal in light of all the evidence of record, to include consideration of whether service connection is warranted for ischemic heart disease under the presumptive for exposure to herbicides. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond thereto. The appellant should be advised that failure to appear for an examination -- if scheduled -- without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2013). 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 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). _________________________________________________ M. E. LARKIN 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).