Citation Nr: 1339210 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 03-08 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disorder. (The issues of entitlement to service connection for hypertension and for diabetes mellitus, type II, as secondary solely to claimed heart disorder, will be the subjects of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1979 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and her spouse testified at a Board hearing before Veterans Law Judge Jacqueline E. Monroe in December 2003 and before Veterans Law Judge J.A. Markey in October 2008; transcripts of those hearings are associated with the claims file. The Board remanded the claim in March 2005 and again in August 2009 for additional development. It was returned to the Board in June 2012, at which time the Veteran was informed of her right to a hearing before a third Veterans Law Judge. The Veteran expressly declined a third hearing in a June 2012 correspondence. In July 2012, the panel denied the Veteran's claim for service connection for a heart disorder claim. The Veteran timely submitted a Motion for Reconsideration in September 2012, but withdrew that motion in December 2012 so that she could pursue an appeal with the United States Court of Appeals for Veterans Claims (Court) instead. During the pendency of that appeal, representatives for the Veteran and the Secretary for the Department of Veterans Affairs (Secretary) jointly agreed to remand this case for further clarification from the Board in a June 2013 Joint Motion for Remand. In a June 2013 Court order, the Court vacated the Board's July 2012 decision and remanded the claim on appeal to the Board for clarification consistent with the Joint Motion for Remand. The case has been returned to the Board at this time in compliance with that Court order. 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 In the Joint Motion for Remand, the Board was asked to clarify and further explain its credibility and probative value analysis of the Veteran's lay statements, particularly in the October 2008 hearing, during which she stated that her treating VA physician stated to her that her current heart and hypertension disorders were related to service. Based on the fact that such an opinion was not found, in written form, in the Veteran's claims file and based on the "Veteran's other contradicted and contradictory assertions in support of her claims," the Board concluded that the "unsubstantiated assertion of an opinion by a treating VA physician relating current heart disease and hypertension to service . . . [was to be] afford[ed] . . . essentially no weight." The Board notes that it did an extensive analysis of lay evidence in the May 2012 Board decision with respect to the hypertension claim, and notes that it specifically addressed the allegation at issue in this case. The Board notes that no issue with that analysis appears to have indicated in the Joint Motion for Remand. The Board is currently willing at this time to remand the case in order for the Veteran to obtain written substantiation of that opinion from her treating VA physician and/or any other VA or private physician that is currently treating her. Accordingly, the Board finds that a remand is necessary in order to allow the Veteran to obtain and submit any substantiating evidence with regards to her claim, to include but not expressly limited to a written opinion from the Veteran's treating VA physician which corroborates her lay statements regarding any non-written opinions respecting etiology of her heart disease that may have been expressed. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records which are not currently in the claims file and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that her may have had for her heart disorder, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that she can make an attempt to obtain those records on her own behalf. 3. The Veteran should be asked to submit any evidence with corroborates or substantiates her lay evidence assertions that a VA treating physician told her that her heart disorder was related to service, to include but not limited to submitting a written opinion from her VA treating physician. 4. Following any additional indicated development, review the claims file and readjudicate the Veteran's claim of service connection for a heart disorder. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is 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 of Veterans' Appeals 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). ____________________________ ______________________________ JACQUELINE E. MONROE JAMES L. MARCH Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________ J. A. MARKEY 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).