Citation Nr: 1757594 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 15-22 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for ischemic heart disease. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1981 to July 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned Veterans' Law Judge at a June 2017 videoconference hearing, and a transcript of this hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). 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 entitlement to service connection for ischemic heart disease. The Veteran's service treatment records are negative for any diagnosis of or treatment for a heart condition, and at his June 2017 videoconference hearing, the Veteran testified that he had no symptoms of a heart condition during his active service. Post-service, there is no evidence of ischemic heart disease or other heart condition within one year of service. The Veteran was treated for a transient ischemic attack in 2006 and suffered a myocardial infarction in 2009. He is currently diagnosed with coronary artery disease with ischemic cardiomyopathy. However, despite the absence of any evidenced of coronary artery disease in service, the Veteran has contended that his current coronary artery disease is related to service. The Veteran has claimed that his ischemic heart disease was caused by hyperlipidemia and that because clinical findings of elevated cholesterol were noted in service, his heart disease should be considered related to service. In August 2017, the Veteran submitted a statement from a private cardiologist who is not identified by name, but simply signed using the name of his or her practice. The cardiologist noted that the Veteran has a number of risk factors for coronary artery disease, including tobacco use/dependence, dyslipidemia, and a family history of coronary artery disease and myocardial infarction. S/he observed that "[w]hile it is impossible to know with any degree of certainty, it is conceivable that his heart attack/MI could have been avoided had he started statin medications and quit smoking cigarettes." Unfortunately, this statement is inadequate to establish service connection for a number of reasons. First of all, according to an August 2017 statement from the Veteran, he started taking medication for his high cholesterol in November 2001, so it is not clear why the Veteran's cardiologist would state that his myocardial infarction could have been avoided if he had started statin medications, since it appears he did in fact start such medication. Additionally, the cardiologist points to the Veteran's smoking as a possible cause of his cardiac disability, noting that smoking cigarettes can increase the risk of developing coronary artery disease by as much as 80 percent. Post-service medical records appear to show that the Veteran started smoking as a teenager, prior to his enlistment in the military. Furthermore, for claims received by VA after June 9, 1998, such as the Veteran's claim, service connection is expressly precluded for any disability related to chronic tobacco use (including smoking). See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. Thus, the cardiologist's statements suggesting the Veteran's tobacco abuse was a significant risk factor for his coronary artery disease actually weigh against the Veteran's claim, suggesting a non-service related cause of his current disability. Finally, the submitted opinion is generally speculative in nature, noting that it is possible the Veteran's coronary artery disease and myocardial infarction were caused by risk factors such as his high cholesterol and smoking, but conceding that is impossible to say for certain. However, for service connection to be granted for a particular disability, a veteran must show not just that it is possible that the claimed condition is related to service, but that such a relationship is probable. Speculative medical opinions are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). However, in McLendon v. Nicholson, 20 Vet App. 79 (2006), the Court stated that if suitable evidence of record is absent, a speculative medical opinion, along with evidence of a current disability and an in-service injury, disease, or event giving rise to an injury or disease, triggers VA's duty to afford the veteran a medical examination or obtain a medical opinion to develop his or her claim. Here, the Veteran has a current diagnosis of coronary artery disease, he had clinical findings of hyperlipidemia in service, and a private medical opinion has suggested at least a speculative relationship between the two. Accordingly, on remand, the RO should refer the Veteran's claim for a VA medical opinion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO should refer the Veteran's claims folder to a cardiologist for a VA medical opinion. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's current heart condition had onset in service, onset to a compensable degree within one year of service, or was caused or aggravated by the Veteran's active military service. The examiner is asked to specifically address the Veteran's contention that his abnormal cholesterol levels caused his current cardiac disability. 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. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. 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. 2. 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 benefit sought is 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 appellant 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). _________________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).