Citation Nr: 1340329 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-25 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a heart disorder, to include coronary artery disease, hypertensive heart disease, and hypertensive vascular disease (previously claimed as an enlarged heart), to include as secondary to the service-connected hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1981. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The Veteran filed a timely Notice of Disagreement (NOD) in August 2009. Although the RO characterized this issue as new and material evidence in the November 2009 rating decision, it is noted that the Veteran timely filed a NOD and his claim remained pending. The Board has recharacterized the issue on the title page accordingly. The Veteran's paperless claims files were also reviewed and considered in preparing this remand, along with his paper claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. Initially, a VA addendum medical opinion is needed before this claim can be decided on the merits. The Veteran was afforded a VA hypertension examination in August 2009, in which he was diagnosed with hypertensive vascular disease and hypertensive heart disease. The Veteran was afforded a VA heart examination in May 2010, in which he was diagnosed with coronary artery disease. Following a physical examination of the Veteran and a review of the claims file, the VA examiner provided a negative medical nexus opinion regarding the causation aspect of secondary service connection for coronary artery disease only (i.e., whether the Veteran's current coronary artery disease diagnosis is due to or related to his service-connected hypertension). The Board finds this VA medical opinion to be inadequate because the examiner did not address the aggravation aspect of secondary service connection, and the examiner did not address the Veteran's other two current heart diagnoses. 38 C.F.R. § 3.310 (2013). The United States Court of Appeals for Veterans Claims (Court) held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection. Allen v. Brown , 7 Vet. App. 439, 449 (1995). The Veteran asserts that his currently diagnosed heart disorders were caused by or aggravated by his service-connected hypertension. Therefore, this VA medical opinion is essential to the Veteran's claim and must be obtained. Additionally, upon remand, the Veteran's pertinent and recent VA Medical Center (VAMC) treatment records should be obtained and associated with the claims file. All pertinent and recent private medical records contained in the claims file should also be updated. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002 & Supp. 2013); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Accordingly, the case is REMANDED for the following actions: 1. Update and associate all pertinent and recent VA outpatient treatment records that have not been secured for inclusion in the record. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 2. Obtain and update all pertinent and recent private treatment records currently contained in the claims file. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 3. Ask the May 2010 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA heart examination to determine the etiology of his currently diagnosed heart disorder, to include coronary artery disease, hypertensive heart disease, and hypertensive vascular disease. The VA examiner should thoroughly review the Veteran's VA claims file, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: Identify all heart diseases. For every heart disease identified to include coronary artery disease, hypertensive heart disease, and hypertensive vascular disease address the following: a) Is it at least as likely as not that the Veteran's currently diagnosed heart disease is caused by or due to his service-connected hypertension? b) Is it at least as likely as not that the Veteran's currently diagnosed heart disease is aggravated beyond the normal progress of the disorder by his service-connected hypertension? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. Note: If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran now has, above and beyond that he had prior to the aggravation. So, if possible, there needs to be some comparison with his baseline of disability versus the disability he now has as a result of the aggravation, again, assuming first it is determined there has been aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements are consistent with a medical point of view. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The Veteran is hereby notified that it is his responsibility to report for any examination scheduled in connection with this REMAND at whatever location it is scheduled and to cooperate in the development of his case. The consequences of failure to report for a VA examination may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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 Court 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). _________________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).