Citation Nr: 1610136 Decision Date: 03/14/16 Archive Date: 03/22/16 DOCKET NO. 05-27 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hypertensive cardiomyopathy, status-post myocardial infarction, stenting, mitral valve prolapse and implantable cardioverter defibrillator (ICD) implant (claimed as heart disease). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney INTRODUCTION The Veteran served on active duty from July 1980 to August 1991. He also had additional Reserves service. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a June 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO is the agency of original jurisdiction (AOJ). In a January 2008 decision, the Board denied this appeal. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2008, the Court granted a joint motion for partial remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the January 2008 decision as to the heart disease adjudication, and remanded that matter to the Board for compliance with the instructions in the JMR. In May 2009, the Board remanded the matter to the AOJ for additional development, to include affording the Veteran a VA examination and obtaining a medical opinion. In January 2011, a VA examination was conducted and a medical opinion was obtained. In a May 2012 decision, the Board again denied this appeal. The Veteran appealed that Board decision to the Court. In an August 2013 decision, the Court issued a decision in which it vacated the Board's decision and remanded the matter to the Board for further proceedings consistent with the Court's decision. The Board again remanded this matter to the AOJ in March 2014 to afford the Veteran a VA examination and obtain a medical opinion. The AOJ has returned the case to the Board for appellate consideration. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND New Examination and Opinion A remand is necessary to afford the Veteran an examination and obtain a medical opinion consistent with the Board's directive in the March 2014 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In short, this means an examination by an appropriate specialist. In the January 2016 argument, the Veteran's representative contends that the examiner's opinion did not comply with the Board's Remand directives (the remand was not before the undersigned). In that March 2014 Remand, the Board stated "the Veteran should be afforded a VA examination before an appropriate specialist regarding his claimed heart disease." The Veteran's representative contends that the examiner was not an "appropriate specialist" and that the Board's Remand order specifically stated that there should be furnished an examination by an appropriate specialist. The Board agrees that there has not been compliance with the Board's Remand in this regard. The examiner who conducted the examination and provided the opinion pursuant to the remand (per a July 2014 opinion and apparently an October 2014 addendum) was a physician assistant. A physician assistant cannot reasonably be construed as an "appropriate specialist" and woould only lead to another case being vacated by the Veteran's Court. This does not suggest that a physician assistant cannot provide a good, or even great, medical opinion (many of these opinions have been the bases of the undersigned's granting of many claims for many Veterans). However, in light of what can only be noted to be extensive litigation in this case, by an "appropriate specialist" in this case the Board means a physician specializing in an appropriate medical field (generally, in the undersigned's remands, we refer to simply a "medical opinion" and do not use such language). Missing Documents The record before the Board does not contain items of evidence or procedural items that are referred to in VA documents and Court documents. Apparently these items were once associated with the claims file but are no longer associated with the claims file (its appears). This must be corrected before any examination is provided or opinion obtained because the examiner must have an accurate record to review. In the August 2013 decision, the Court referred to a January 2011 VA heart examination. There is no report of a January 2011 VA examination associated with the Veterans Benefits Management System (VBMS) or Virtual VA files for this Veteran. In that August 2013 decision, the Court also referred to a December 2011 Supplemental Statement of the Case (SSOC) and to argument from the Veteran received by VA in December 2011 contending that the January 2011 examination was not adequate and to a Board Remand from May 2012. The record stored in VBMS and Virtual VA does not contain the December 2011 SSOC or any argument received from the Veteran in December 2011 or the May 2012 Board Remand. In the July 2015 Supplemental Statement of the Case (SSOC), the AOJ referred to an October 21, 2014 addendum to the July 2, 2014 VA examination. There is a report of the July 2, 2014 VA examination but neither the VBMS nor the Virtual VA files contain an October 21, 2014 addendum. In that SSOC, the AOJ referred to the examiner's exam findings and report as follows: The examiner's exam findings and report included the following: It is my medical opinion it is less likely than not that the patient's hypertension caused his current significant cardiac conditions. I do believe that his tobacco abuse, genetics and hypercholesterol issues has caused his cardiac condition. The patient had fairly good blood pressures when reviewed from the C-file while serving in the U.S. Air Force from July 1980 to August 1987. The patient was in Germany and Korea at that time. When the patient had cause for hypertension, such as laceration to finger, it was noted the patient had corresponding high blood pressure, but for the most part the patient's blood pressures were very well controlled. It should be noted the patient does have a long standing history of tobacco abuse 1 1/2 packs per day. The patient continued to smoke until after his myocardial infarction. Again, I do believe the patient's heart disease is not caused as a result by his in-service conditions or by his hypertension. The rationale for this is the patient did not have hypertension during his service or as late as 1993, 2 years post discharge from the service. The patient's blood pressure readings in the service were normal with the exception of two borderline values associated with the laceration and a dehydration issue. There is no document of record containing this text. What is of record is the July 2014 examination report reported on a Disability Benefits Questionnaire (DBQ) and there a DBQ for the medical opinion from that same date. In the examination DBQ, the examiner diagnosed several heart conditions. In a section of labeled "2. Medical History c. Provide the etiology, if known, of each of the Veteran's heart conditions" the examiner stated "UKNOWN." In the Medical Opinion DBQ, the requested opinion and opinion provided were stated as follows: MEDICAL OPINION SUMMARY RESTATEMENT OF REQUESTED OPINION: a Opinion from general remarks: IS PTS PRE HTN THE CAUSE OF CURRENT CARDIAC CONDITION? TYPE OF MEDICAL OPINION PROVIDED: MEDICAL OPINION FOR DIRECT SERVICE CONNECTION. a. The condition claimed was at least as likely as not (50% or greater probability) incurred in or caused by the claimed in-service injury, event or illness. c. Rationale: YES , THIS TOB ABUSE! GENETICS, AND HYPERCHOL ISSUES HAS CAUSED HIS CARDIAC CONDITION. NOT DUE TO ANY SERVICE RELATED EVENTS Also of record is an email correspondence sent from an AOJ employee to the examiner on October 2, 2014. The examiner was asked to review the text provided by the examiner because the opinion seemed to contradict itself in that section "a." seems to indicate that the claimed condition was incurred in or caused by service while the rational seems to indicate that it was not. It asked the examiner to provide an opinion consistent with the examination request. The examiner replied several hours later on October 2, 2014, stating that the Veteran's hypertension did not cause his cardiac condition but that his age, tobacco, genetics and cholesterol caused his cardiac issues. The March 2014 Board Remands are in VBMS or Virtual VA. In drafting the instant document, the Board accessed the May 2012 and March 2014 Remands via the Veterans' Appeals Control and Locator System (VACOLS). Of note, the earliest "Storage Date" for any document in VBMS for this Veteran is November 13, 2014. On the notion that the above referred to documents (the 2014 addendum, the 2011 examination report, the December 2011 SSOC, the December 2011 Veteran argument, the May 2012 Board Remand, and the March 2014 Board Remand) were mislabeled in the VBMS or Virtual VA claims file, the Board has opened and reviewed every document in the Veteran's VBMS and Virtual VA claims file. As of the drafting of the instant Remand, that includes all 362 documents stored in VBMS and the 15 documents stored in Virtual VA. However, the documents referred to above are not of record. On remand, the AOJ must ensure that the October 21, 2014 addendum, the January 2011 VA heart examination report, the December 2011 SSOC, the December 2011 argument from the Veteran, the May 2012 VA Remand, and the March 2014 Remand are located and added to the record. Given the number of documents that are not in the record but once were (it appears), the AOJ must make efforts to ensure that the Veteran's record is complete, to include any other documents that can be located. This must be accomplished prior to his examination because the record must be complete for review by the examiner. The Veteran's attorney is asked to assist in this effort, submitting copies of the records cited above if they have them. Accordingly, the case is REMANDED for the following action: 1. Ensure that the October 21, 2014 addendum, the January 2011 VA heart examination report, the December 2011 SSOC, the December 2011 argument from the Veteran, the May 2012 VA Remand, and the March 2014 Remand are located and added to the record. Ensure that the Veteran's claims file is complete. 2. Then, ensure that the Veteran is scheduled for a VA examination before an appropriate specialist regarding his claimed heart disease. A physician assistant or a nurse will not be considered an appropriate specialist. An appropriate specialist is a physician specializing in an appropriate medical field. Upon review of the evidence of record and a physical examination of the Veteran, the examiner must specifically discuss the Veteran's assertion that he had pre-hypertension in service and, if so, what bearing, if any, such pre-hypertension may have on the relationship between the Veteran's current heart disease and his service. The Board notes the attorney's reference to a medical treatise discussing pre-hypertension. A determination must be made as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran demonstrated pre-hypertension during service. If the examiner finds that the Veteran did have pre-hypertension in service, the examiner must so state and then provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the pre-hypertension is etiologically related to the Veteran's current heart disease. Whether the examiner finds that the Veteran did or did not have pre-hypertension during service, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current heart disease is related to any injury, disease or event incurred in service. In rendering an opinion, the examiner must (a) consider and address the Veteran's in-service treatment records, VA treatment records, private treatment records and reference to medical treatise information regarding pre-hypertension; (b) take into consideration the Veteran's report of the onset of his hypertension and symptoms since service in conjunction with the available medical evidence, and (c) discuss inservice notation of elevated cholesterol and possible hyperlipidemia and the significance of these findings relative to whether the Veteran's heart disease is related to service. All appropriate testing should be accomplished. The examiner must provide a rationale for any opinion provided. If the requested opinions cannot be provided without resort to speculation, the examiner should so state and provide a complete explanation as to why an opinion cannot be provided without resort to speculation. 3. Then, readjudicate the claim that is the subject of this Remand. If the benefit sought is not granted, furnish an SSOC to the Veteran and his representative and allow an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order. 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 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). _________________________________________________ JOHN J. CROWLEY 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).