Citation Nr: 1603210 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 08-32 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for a heart disorder. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for hypertensive vascular disease. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Appellant is a veteran who served on active duty from November 1974 to November 1976 and from April 1980 to March 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In January 2011, the Veteran testified at a personal hearing before an Acting Veterans Law Judge who is no longer employed at the Board. The Veteran was offered another hearing with a Veterans Law Judge (VLJ) and given 30 days to respond, but since no response was received his right to another hearing is deemed waived. A copy of the transcript is of record. In March 2011, September 2012, May 2013, and January 2014 the Board remanded the claims for additional development and adjudicative action. In a November 2014 Decision, the Board denied the Veteran's claims. This matter has been remanded to the Board by a September 2015 Order of the United States Court of Appeals for Veterans Claims (Court). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking compensation under 38 U.S.C.A. § 1151 for a heart condition and hypertensive vascular disease. The Veteran asserts that his complaints of chest pain were ignored by VA and that the VA failed to diagnose and treat his heart conditions, which led to two heart attacks and heart surgery in August 2007. Under 38 U.S.C.A. § 1151 (West 2014), disability compensation shall be awarded for a "qualifying additional disability" in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a) (2015). The matter is remanded for further development pursuant to the findings of the August 2015 Joint Motion for Remand (JMR). First, a February 2014 VA medical opinion was inadequate because the examiner did not opine as to whether or not the "reasonably foreseeable" clause of § 1151 was met regarding hypertensive vascular disease. On remand, the Veteran's claims file should be referred to the February 2014 VA medical examiner for an addendum medical opinion addressing whether the Veteran's hypertensive vascular disease was reasonably foreseeable pursuant to the "reasonably foreseeable" clause of § 1151. This medical opinion should review the Veteran's prior medical history before stating an opinion and provide reasoned explanations for its conclusion. Additionally, available VA treatment records refer to diagnoses and treatments that are not of record. The Veteran has claimed that he has been treated at Temple and Dallas VA medical centers since March 2003. On remand, the RO should attempt to obtain all available VA treatment records from March 2003 through the present, including any archived records. If the RO finds that these records are relevant to the Veteran's claims, it should consider whether new VA medical opinions are warranted. Finally, the parties agree that the Veterans Law Judge who presided over the Veteran's January 2011 hearing did not fully explain the evidence that was necessary to substantiate Appellant's claims or suggest the submission of supporting evidence that may have been overlooked and they have determined that the Veteran is entitled to a new hearing. The Board notes that because the VLJ that administered the Veteran's January 2011 hearing has since left the Board, the Veteran was informed of his right to a new hearing, which he waived. Nevertheless, once all the above development has been completed, the Veteran should be scheduled for a new hearing before a member of the Board. Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to obtain all VA inpatient and outpatient treatment records from March 2003 through the present, including any archived records. The RO should document all attempts to obtain these records and if they are unavailable, a formal finding of such should be placed of record. 2. Once this is done, the RO should return the Veteran's claims folder to the February 2014 VA medical examiner for an addendum medical opinion. If this examiner is no longer available, the claims file should be referred to another VA cardiologist. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's hypertensive vascular disease was reasonably foreseeable pursuant to the "reasonably foreseeable" clause of § 1151. Whether the proximate cause of a veteran's claimed disability was an event not reasonable foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. 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. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran should also be scheduled for a personal hearing before a member of 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). 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 2014). _________________________________________________ BRADLEY W. HENNINGS 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) (2015).