Citation Nr: 1522040 Decision Date: 05/22/15 Archive Date: 06/01/15 DOCKET NO. 12-23 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for coronary artery disease (CAD). 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The appellant served on active duty from January 1963 to September 1964, and has service in the Army National Guard from August 1980 to August 2000, with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which declined to reopen the appellant's previously denied claim of entitlement to service connection for CAD on the basis that new and material evidence had not been received and denied entitlement to service connection for hypertension. In April 2014, the appellant and his sister testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. The claim of entitlement to service connection for CAD was denied by a May 2002 rating decision. While the appellant filed a May 2002 Notice of Disagreement (NOD) and was provided a February 2003 Statement of the Case (SOC), he did not perfect his appeal. At the time of the May 2002 rating decision, service treatment records from the appellant's National Guard service were not available. Since that time, service treatment records, as well as additional service personnel records from the appellant's National Guard service have been associated with the claims file. Where new evidence is submitted, consisting of pertinent service records, after a decision has become final, the former decision will be reconsidered without regard to the provisions relating to new and material evidence. 38 C.F.R. § 3.156(c) (2014). As the noted service treatment and personnel records were not of record at the time of the May 2002 rating decision denying the claim, the Board finds that the criteria of 38 C.F.R. § 3.156(c) have been satisfied. Reconsideration is warranted, and inquiry as to whether new and material evidence sufficient to reopen a previously denied claim is not required. The issue has been recharacterized to reflect this result. Review of the VA paperless claims processing systems reveals additional documents pertinent to the present appeal, specifically, additional service personnel records and VA treatment records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant generally asserts that his CAD and hypertension began during a period of active service in the National Guard. During his April 2014 Board hearing, he clarified that his claimed disabilities were not related to his first period of active service in the Air Force. At that time, he also asserted that his CAD was "found" on general examination at Fort Leonard Wood in 1992 and he sought private treatment a few weeks later and was tested and treated with medication for blood pressure until his first surgical repair in 1998, and that his hypertension "became a problem" during service in 1992. He asserted that he had to go to the emergency room in 1998, during annual training, for a heart attack. His sister reported that she was aware in 1992 that the appellant was being treated for hypertension. Service records dated in June 1990 indicate that the appellant's cardiovascular risk assessment revealed results that he presented with blood pressure of 108/76 and that he met the Army's criteria for physical fitness and testing. In December 1993, on his Report of Medical History, the appellant denied heart trouble or high blood pressure. His Report of Medical Examination at that time indicated that the appellant presented with blood pressure of 134/88 and the examiner determined that the appellant was not cleared due to his cholesterol ratio. A cardiovascular risk assessment in January 1994 indicates that the appellant presented with blood pressure of 134/88 and that he was not cleared due to his cholesterol ratio and required consultation. A February 1994 non-diagnostic cardiac stress test report indicates that the appellant presented with blood pressure of 122/84. A March 1994 positive Thallium stress test, indicating that the appellant presented with blood pressure of 118/86, is of record. Private treatment records dated in August 1994 indicate that the appellant was sent for evaluation after a positive Thallium stress test and underwent cardiac catheterization which showed only mild coronary disease, with 60-70 percent stenosis of the smaller anterior marginal branch of the circumflex coronary artery. The physician reported that the appellant underwent an additional stress test with excellent results, without ischemia, and he reported that the appellant was able to do any work. Record of a private March 1994 left heart catheterization and coronary angiography was attached, and indicates that the appellant presented with blood pressure of 110/70. Private report of an April 1996 stress echocardiogram revealed suboptimal exercise tolerance due to chronic obstructive pulmonary disease with acute bronchitis, without chest pain, ischemic changes, arrhythmias, or significant scarring; and a maximum blood pressure of 166/84. Private report of a May 1997 stress echocardiogram revealed fairly good exercise tolerance in light of orthopedic problems, without ischemic changes, complex arrhythmias, or significant scarring; and a maximum blood pressure of 150/80. Private treatment records dated in May 1998 indicate that the appellant presented with progressive unstable angina and underwent left heart catheterization with coronary angiography, percutaneous transluminal coronary angioplasty, and stenting of the right coronary artery. On an October 1999 Annual Medical Certificate, the appellant reported that he was scheduled to present at St. Mary's Hospital five days later for heart catheterization. His November 1999 Report of Medical Examination indicates that the appellant had CAD and hypertension and that he presented with blood pressure of 136/97. Private treatment records dated in January 2000 indicate that the appellant had atherosclerotic coronary heart disease with prior interventional procedures and that the physician reported that the appellant's November 1999 stress test was silent for ischemia and revealed normal left ventricular size and function with left ventricular ejection fraction of 58 percent. Any adjudication of the appellant's service connection claims requires determination and consideration of the duty status of the appellant at the time of his complaints, treatment, or diagnoses, i.e., whether he was on active duty, ACDUTRA, or INACDUTRA. While there are voluminous service personnel records associated with the claims file, it remains unclear to the Board the precise dates of any such service. In this regard, a number of the records are charts or coded worksheets related to tallying the appellant's retirement points. The Board has been able to decipher some worksheets and determine some dates of service; however, on remand, the AOJ should submit an accounting or listing of all periods of active duty, ACDUTRA, and INACDUTRA (month, day, and year) for the appellant's Army National Guard service from 1990 to 2002, beyond that of just a listing of the appellant's retirement points or copies of coded charts or documents. Only after such has been created should the AOJ forward the appellant's claims file to a VA examiner to afford the appellant a VA cardiac examination to determine the onset of his CAD and hypertension. The appellant's most recent VA treatment records associated with the claims file are dated in December 2014. Also, it does not appear that the appellant's private treatment records from St. Mary's Hospital dated in 1999, mentioned in his October 1999 Annual Medical Certificate, wherein he reported that he was scheduled to present at St. Mary's Hospital five days later for heart catheterization, are of record. On remand, the AOJ should obtain his updated VA treatment records and request the appellant's authorization to obtain his relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the appellant's treatment records from the VA Medical Center (VAMC) in Kansas City, Missouri, including the Fort Leonard Wood Community Based Outpatient Clinic (CBOC), dated from December 2014 to the present. If a negative response is received from any VA facility, a record of such must be made and the appellant must be duly notified and provided an opportunity to submit such records. 2. Contact the appellant and provide him VA Forms 21-4142, Authorization and Consent to Release Information to the VA. Inform him it appears that his private treatment records from St. Mary's Hospital dated in 1999, mentioned in his October 1999 Annual Medical Certificate, wherein he reported that he was scheduled to present at St. Mary's Hospital five days later for heart catheterization, are of record. Advise the appellant that he may submit any outstanding relevant private treatment records if he so chooses. Obtain any identified and authorized private treatment records. If a negative response is received from any facility, a record of such must be made and the appellant must be duly notified and provided an opportunity to submit such records. 3. Review the service personnel records associated with the claims file and submit an accounting or listing of all periods of active duty, ACDUTRA, and INACDUTRA (month, day, and year) for the appellant's Army National Guard service from 1990 to 2000, beyond that of just a listing of the appellant's retirement points or copies of coded charts or documents. If necessary, contact the Defense Finance and Accounting Service (DFAS), Defense Personnel Records Imaging System (DPRIS), and any other federal sources (e.g., unit records, personnel records, Physical Profiles, Line of Duty determinations, referrals to civilian care, reimbursement for payment of civilian care, or SF-600s Chronological Records of Care from other departments) to verify the specific dates of the appellant's periods of duty. If a negative response is received from any facility, a record of such must be made. Any records obtained must be associated with the claims file. 4. Only after completion of the above, schedule the appellant for a VA examination by an appropriate provider. The examiner must be provided the appellant's enumerated periods of active duty, ACDUTRA, and INACDUTRA. (a) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the appellant's CAD was: (i) incurred in or aggravated by active service; (ii) is a result of a disease or injury incurred or aggravated (a permanent increase in disability beyond the natural progress of a disease) during a period or periods of ACDUTRA; (iii) is a result of an injury incurred or aggravated, or an acute myocardial infarction or cardiac arrest, during a period or periods of INACDUTRA, or is otherwise related to active service; or (iv) was manifest to a compensable degree within one year of separation from any active period of service, as opposed to any period of ACDUTRA or INACDUTRA. In this regard, the examiner must specifically discuss the appellant's lay statements that his CAD began in 1992 during a period of active service, "found" on general examination, as well as the voluminous treatment records marked in the claims file demonstrating his cardiac testing and treatment. (b) The examiner should opine as to whether it is at least as likely as not that the appellant's CAD was: (i) incurred in or aggravated by active service; (ii) is a result of a disease or injury incurred or aggravated (a permanent increase in disability beyond the natural progress of a disease) during a period or periods of ACDUTRA; (iii) is a result of an injury incurred or aggravated, or an acute myocardial infarction or cardiac arrest, during a period or periods of INACDUTRA, or is otherwise related to active service; or (iv) was manifest to a compensable degree within one year of separation from any active period of service, as opposed to any period of ACDUTRA or INACDUTRA. In this regard, the examiner must specifically discuss the appellant's lay statements that his hypertension began in 1992 during a period of active service and was treated with medication, as well as the voluminous treatment records marked in the claims file demonstrating his cardiac testing and treatment, including record of blood pressure readings. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 5. Then, after ensuring any other necessary development has been completed; readjudicate the appellant's claims. If any action remains adverse to the appellant, provide him and his representative with a Supplemental SOC and allow him an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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). These claims 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 2014). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).