Citation Nr: 1757730 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 12-28 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for ischemic heart disease (IHD), status post myocardial infarctions (a heart disability). REPRESENTATION Appellant represented by: New Hampshire State Office of Veterans Services ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1974 to January 1977. He had additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In September 2015 and July 2016, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. In May 2017, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in cardiology with regard to the appeal of service connection for a heart disability. The requested VHA opinion, dated in July 2017, was incorporated into the electronic record, and the Veteran and the representative were provided with a copy of the July 2017 VHA opinion. 38 C.F.R. § 20.901 (2017) (the Board has the authority to obtain a VHA medical expert opinion when, in its judgment, such medical expertise is needed for an equitable disposition of an appeal). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Since the most recent March 2017 Supplemental Statement of the Case (SSOC), the Board received additional evidence in August 2017, which was not considered by the AOJ. Specifically, pursuant to the July 2017 VHA opinion, the Veteran submitted two additional private medical opinions from Dr I.P. and Dr. D.R.H., both dated in June 2017. Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, amends 38 U.S.C. § 7105 by adding new paragraph (e). Under 38 U.S.C. § 7105(e), if the claimant or the claimant's representative submits new evidence with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In this case, the Substantive Appeal with respect to the issue on appeal (service connection for a heart disability) was received prior to February 2, 2013; accordingly, the new 38 U.S.C. § 7105(e) is not applicable to this case. When evidence is received after the transfer of a case to the Board, as is the case here, the Board will determine what action is required with respect to the additional evidence. 38 C.F.R. § 19.37(b) (2017). Under 38 C.F.R. § 20.1304(c) (2017), any pertinent evidence submitted following certification of an appeal to the Board must be referred to the AOJ for review, "unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral." 38 C.F.R. § 20.1304(c). Also, in this case, the notification letter associated with the July 2017 VHA opinion informed the Veteran that he has the right to have any newly submitted evidence considered by the AOJ for review and for issuance of an SSOC. In the alternative, the Veteran was notified that he may waive, in writing, the right to initial AOJ consideration of the newly submitted evidence, and request that the Board proceed with the adjudication of the appeal without remanding the case to the AOJ. Here, neither the Veteran nor the representative has waived initial AOJ consideration of the evidence (June 2017 private medical opinions from Dr. Dr I.P. and Dr. D.R.H.), which was submitted in August 2017. This procedural right of initial AOJ review has not been waived by the appellant or the representative, and the new pertinent evidence does not guarantee that any of the benefits sought on appeal may be fully allowed on appeal without such referral. Id. For these reasons, the appeal of service connection for a heart disability will be remanded for appropriate action so that the above-noted evidence is appropriately addressed with an SSOC. Accordingly, the case is REMANDED for the following action: Review all evidence added to the electronic claims file since the March 2017 SSOC that pertains to the issue on appeal (service connection for a heart disability). Specifically, consider the June 2017 private medical opinions from Dr. I.P. and Dr. D.R.H., which were submitted in August 2017. After undertaking any additional development which may be necessary, readjudicate the issue of service connection for a heart disability to determine if entitlement to the benefit sought is warranted. If the benefit sought remains denied, the Veteran and representative should be furnished with an SSOC. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (West 2014). _________________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).