Citation Nr: 1751658 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-35 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a heart disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from February 1990 to June 1990 and from October 2001 to March 2002. The Veteran had additional service in the Tennessee Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a hearing before the undersigned in October 2016. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the hearing before the undersigned, the Veteran reported that he had been treated at the VA clinic for his back. Review of the claims file does not reveal any VA treatment records. On remand, obtain and associate with the claims file all VA treatment records regarding the Veteran. 38 C.F.R. § 3.159 (2017). The Veteran reported at his hearing that in 2006 he went on mock exercises. He stated that at that time he felt faint and weak from wearing chemical gear. He reported that he was dehydrated and had slight chest pain. The Veteran stated that, thereafter, upon return home, he went to see a physician and was told he had had a heart attack. Treatment records associated with the claims file reveal that in June 2006 the Veteran was noted to have a history of angina pectoris. In subsequent treatment notes, including in September 2006, the Veteran was diagnosed with non-ischemic cardiomyopathy. Service personnel records associated with the claims file reveal that the Veteran was discharged effective April 2011 and that he was awarded the Air Force Outstanding Unit award for the period of July 2004 to June 2006. However, the records do not include records of duty assignments or points after January 2005. Therefore, the nature and extent of the Veteran's duty in 2006 is unclear. In the context of National Guard service, active military service is defined to include any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101 (24) (West 2014). Therefore, the claim of entitlement to service connection for a heart disability must be remanded for attempts to be made to obtain the Veteran's complete National Guard personnel records for 2006 and to verify the Veteran's periods of active duty, active duty for training, and inactive duty for training in 2006. Further, if service personnel records reveal that the Veteran served on active duty for training or inactive duty for training during the months prior to June 2006, the Veteran must be afforded an examination regarding the etiology of his non-ischemic cardiomyopathy. In particular, whether the Veteran's reported symptoms during the period of duty represent the incurrance of an injury later diagnosed as non-ischemic cardiomyopathy and/or represent an acute myocardial infarction that at least as likely as not caused the Veteran's current disability. 38 C.F.R. § 3.159; See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service personnel records reveal that the Veteran served in logistics and supply. At the hearing the Veteran reported that in service he worked in loading and unloading cargo planes and handling supply parts. He stated that he injured his back carrying out these duties. The Veteran reported that he did not seek treatment while in service but complained of his back problem to his supervisor. The Veteran reported that he was diagnosed with degenerative disc disease and that he was seen in the VA clinic for his back. He stated that he did not receive treatment and just dealt with it. Treatment records associated with the claims file do not reveal a diagnosis of a back disability. The Veteran has not been afforded a VA medical examination with regard to the etiology of his reported back disability. As the records reveal that the Veteran served in supply and as the Veteran has reported that he had back problems in service and has since been seen in a VA clinic for his back, the Board finds it necessary to remand the claim of entitlement to service connection for a back disability for the Veteran to be afforded a VA examination. Id. Accordingly, the case is REMANDED for the following action: 1. Take all appropriate action to obtain and associate with the claims file all VA treatment records. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Take all appropriate action to obtain and associate with the claims file service personnel records regarding the Veteran's service in the Tennessee Air National Guard during 2006 and verify the Veteran's periods of active duty, active duty for training, and inactive duty for training during that time period. 3. Thereafter, if and only if, service records are associated with the claims file indicating that the Veteran had duty in 2006 prior to his diagnosis with non-ischemic cardiomyopathy, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any heart disability found to be present. The claims folder should be made available to the examiner for review. All indicated studies should be performed, and all findings should be reported in detail. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not (a 50 percent or greater probability) that any heart disability found to be present is related to or had its onset during service? The examiner must opinion as to whether it is at least as likely as not that the Veteran's reported symptoms during the period of duty represent the incurrence of an injury later diagnosed as non-ischemic cardiomyopathy and/or represent an acute myocardial infarction that at least as likely as not caused the Veteran's current disability. The rationale for all opinions expressed should be provided in a report. 4. Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any back disability found to be present. The claims folder should be made available to the examiner for review. All indicated studies should be performed, and all findings should be reported in detail. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not (a 50 percent or greater probability) that any back disability found to be present is related to or had its onset during service? The examiner should consider and discuss as necessary the Veteran's reports of pain in service and activities of his service in supply. The rationale for all opinions expressed should be provided in a report. 5. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ M. E. LARKIN 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) (2017).