Citation Nr: 1340871 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-23 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for heart disease. 2. Entitlement to service connection for hypertension. ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active service from November 1981 to May 1992. Afterwards, she was a member of the South Carolina Army National Guard (SCARNG). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which-in pertinent part, denied the benefits sought on appeal. A January 2011 RO letter informed the Veteran that the Board Hearing she requested was scheduled for February 18, 2011. The claims file reflects no evidence of the letter having been returned as undeliverable. The Veteran failed to appear for her scheduled hearing, and the claims file reflects no evidence of her having requested that the hearing be rescheduled. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2013). The issue of entitlement to an increased rating for post-operative residuals of left total knee replacement has been raised by the record, but 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. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Board remanded the case for completion of directed additional development in October 2012. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The AMC completed the additional development directed in the October 2012 Board remand. 2. The medical evidence of record shows the absence of a currently diagnosed heart disorder. CONCLUSION OF LAW The requirements for entitlement to service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(k), 3.6(a),(c)(3), 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the rating decision appealed, VA notified the Veteran in February 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The letter also provided adequate notice of how disability ratings and effective dates are assigned in the event service connection is granted. The February 2009 letter was fully time- and content-compliant. See 38 C.F.R. § 3.159(b)(1); see also Dingess/ Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Board remanded the claim in part in July 2011 and October 2012 so the Veteran's SCARNG service treatment records and identified private treatment records could be obtained. As concerns the former, the AMC exhausted all applicable efforts to obtain the service treatment records. A June 2013 Formal Finding declared the ARNG records unavailable. See 38 C.F.R. § 3.159(c)(2). Concerning the private records, the AMC, in a February 2013 letter, again asked the Veteran to provide the necessary releases to obtain the private records she had previously identified, or obtain them herself. There is no record, however, that she provided the releases or the records. The records the eventually provided are related to her service-connected left knee. Hence, the Board finds no further efforts are indicated as concerns private records related to the claimed heart disorder. Id.; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (duty to assist is not a one-way street). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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, or any period of inactive duty training (IDT) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, which occurred during such training. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505; 38 C.F.R. § 3.6(c)(3). Presumptive periods do not apply to ACDUTRA or IDT. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing IDT. 38 U.S.C.A. §§ 101(24), 106. Analysis On her February 1994 Report of Medical History for her examination for the SCARNG, the Veteran denied any prior history of any heart-related symptoms. The February 1994 Report of Medical Examination reflects a normal heart, lungs, and chest. The August 2011 VA examination report reflects that the examiner conducted a review of the claims file as part of the examination. A review of the claims file revealed no records related to treatment for a heart disorder. The Veteran did not report any valvular heart disease, heart failure, or arrhythmia. She did report dyspnea on exertion without reported orthopenea or edema. She reported further that she had chest pain not related to exertion once a month, which was relieved by nitroglycerin. Upon physical examination the lungs were without adventitious sounds, and the heart revealed S1, S2, without murmurs. There was no ankle edema. The examiner ordered an echocardiogram (echo) and, if necessary, an exercise stress test after the echo. The examiner diagnosed hypertension without findings of cardiac involvement. The October 2011 echo examination report revealed no significant valvular heart disease, and left ventricle function was normal with an ejection fraction greater than 55 percent. The March 2013 examination report reflects that the examiner again reviewed the claims file, noting the lack of documentation of any diagnosis of heart disease. The examiner noted the normal echo, and that an October 2008 chest X-ray showed no heart enlargement or active cardiopulmonary disease. The examiner opined the Veteran did not meet the criteria for a diagnosis of heart disease. With regard to the first evidentiary showing, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (formerly § 310). In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (Interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes) and Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999). The Board acknowledges the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). As set forth above, however, the medical evidence of record shows the Veteran has not manifested a heart disorder at any time during the pendency of her claim. In light of this, the Board is constrained to deny the claim. 38 C.F.R. § 3.303. ORDER Entitlement to service connection for heart disease is denied. REMAND Regrettably, the hypertension claim must again be remanded. See Stegall, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The March 2013 DPRIS screen in the claims file does not reflect the precise inquiry entered by the AMC. In any event, the May 2005 amendment to the Special Order that directed the Veteran's discharge from the SCARNG notes her post-discharge unit as the USAR Control Group (IRR); Reserve Way; St Louis, MO 63132-5299. This entity may be the "St. Louis, MO," which the Adjutant General, SCARNG, intended to reference in its responses to the RO and AMC. The AMC/RO will inquire of the IRR as to whether it has any SCARNG service treatment records related to the Veteran. Please document all responses. The VA medical examiner was not informed of the specific periods of the Veteran's ACDUTRA and IDT. Her SCARNG Points History notes she earned both active duty and IDT points between October 2002 and September 2003; and IDT points between October 2003 and September 2004. VA outpatient records note the Veteran's report that she was diagnosed with hypertension in 2003. A February 2004 private note reflects treatment for hypertension. The AMC/RO will ask the Adjutant General, SCARNG, to provide the specific dates on which the Veteran performed ACDUTRA or IDT during the periods noted in the above paragraph. Please document all efforts to obtain this information. Upon receipt of the specific dates of the Veteran's ACDUTRA and IDT during those periods, the AMC/RO must determine the periods of IDT that meet the requirements of 38 C.F.R. § 3.6(d). 2. After all of the above is completed, return the claims file to the examiner who conducted the October 2011 and March 2013 reviews of the claims file. Inform the examiner of the specific time periods of the Veteran's ACDUTRA, and qualifying IDT, if any. Ask the examiner if there is at least a 50-percent probability that any preexisting hypertension was aggravated, that is-chronically worsened, by either ACDUTRA or IDT performed between January 2003 and August 7, 2004. A full explanation should be provided for any opinion rendered. In the event the examiner who conducted the August 2011 examination and March 2013 claims file review is no longer available, refer the claims file to an equally qualified examiner. Should the examiner or substitute examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 3. After completion of all of the above, the AMC/RO should re-adjudicate the claim on appeal. If the decision remains in any way adverse to the Veteran, she and her representative, if any, should be provided with a Supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify her if further action is required on her part. She has the right to submit additional evidence and argument on the matter or 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 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs