Citation Nr: 1800656 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 12-01 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a heart murmur. 2. Entitlement to service connection for hemophilia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from January 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In November 2011, the Veteran testified at hearing before a Decision Review Officer (DRO). In January 2013, the Veteran testified at another hearing before the undersigned Veterans Law Judge. A transcript of both of those hearings has been associated with the Veteran's electronic claims file. In January 2014, the Board reopened the instant claims on appeal and remanded both claims for further evidentiary development. The case has been returned to the Board for appellate consideration. In this regard, the Board has undergone a detailed review of the record. It appears that the issue of service connection for a callous condition on the right foot has been raised by the record in a September 1981 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The record reflects that the Veteran was last afforded a VA examination for the claimed conditions of a heart murmur and hemophilia in August 2014. The examiner ultimately provided a negative nexus opinion regarding the Veteran's claimed conditions and his military service. The examiner noted that the Veteran's January 1971 entrance examination indicated that he had a history of rheumatic fever since the age of 14. In addition, with regard to the Veteran's hemophilia disorder, the examiner noted that the Veteran was seen during his active duty service for a history of frequent nosebleeds since childhood, which was noted to be related to a genetic blood clotting disorder. The August 2014 VA examiner opined that both of the claimed conditions of heart murmur and hemophilia were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner indicated that the Veteran had clear and undisputable documentation from his service treatment records that showed a history of rheumatic fever since the age of 14. The examiner continued that this infection, if improperly treated, initially can lead to valvular heart condition, such as the condition that the Veteran has developed over the years. With regard to the hemophilia disorder, the examiner noted that the Veteran's frequent nosebleeds in childhood; thus, the disorder was a result of a genetic etiology, not an acquired disorder. The Board finds that the August 2014 VA medical opinion is inadequate, as the examiner failed to provide any opinion as to whether the Veteran's heart murmur and hemophilia were such conditions that were aggravated by any incident of his military service. In this regard, VA may only find a lack of aggravation under § 1111 if the clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (citing 38 U.S.C. § 1153 and 38 C.F.R. § 3.306); see Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) (emphasizing that "neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111"). If this burden is met, then the Veteran is not entitled to service-connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the preexisting condition was not aggravated by active service, then the presumption has not been rebutted. See id. at 1094. In other words, the claim may not be denied on the basis of a finding that the disability in question preexisted active service if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. See id. Therefore, the Board finds that the August 2014 VA examiner's opinion is inadequate, as the VA examiner did not provide an opinion or conclusions with regards to aggravation. In addition, in the December 2016 Informal Hearing Presentation, the Veteran, through his representative, asserts that the August 2014 VA examination was inadequate, as it did not consider the Veteran's lay statements concerning the history of his medical maladies. See Informal Hearing Presentation at page 4. In light of the foregoing and the passage of over three years since the Veteran's last evaluation, the Board finds that the Veteran should be scheduled for a new examination to determine whether there is clear and unmistakable evidence that the Veteran's heart murmur and hemophilia preexisted service, and also whether the Veteran's conditions were not aggravated while in service. Thus, the Board finds that new VA examinations for both the Veteran's heart murmur and hemophilia are warranted. On remand, prior to any examination, the AOJ should make appropriate efforts to ensure that all relevant outstanding private and VA treatment records are associated with the claims folder. In January 2014, the Board remanded the issues on appeal, in part, to obtain private medical records from Dr. Goldenberg in Hartford, Connecticut for the Veteran's heart condition. In December 2011, the Veteran submitted Dr. Goldenberg's obituary dated April 2004. Since the January 2014 remand, it does not appear that VA has made any effort to attempt to obtain these private records. A Board remand confers upon the Veteran, as a matter of law, the right to compliance with the remand order. Stegall, 11 Vet. App. at 270-71. Thus, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. If possible, the Veteran should get these records himself to expedite the case. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant prior and ongoing private and/or VA treatment records related to the Veteran's treatment of his claimed heart murmur and hemophilia, including all available treatment records from Dr. Philip Goldenberg at the St. Francis Hospital in Hartford, Connecticut. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. Again, if possible, the Veteran should submit these records himself, and any new records regarding treatment of this disability that VA does not have. 2. Once the record is developed to the extent possible, schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of his heart murmur condition. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a) Identify all current heart conditions associated with the Veteran. (b) Determine whether there is clear and unmistakable evidence that the Veteran's heart murmur (or any other diagnosed heart condition) preexisted service. Note that "clear and unmistakable" evidence means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. (c) Regardless of the conclusion to subpart (b), determine whether there is clear and unmistakable evidence that the Veteran's heart murmur was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). (d) If there is not clear and unmistakable evidence that the Veteran's heart murmur preexisted service and was not aggravated by service, then the Veteran must be considered to have been sound at entry, and based upon that premise, the question to answer would be whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's heart murmur had its onset in service or is otherwise related to service. In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, the Veteran's statements regarding in-service injury associated with asthma, and all prior VA and private examinations. A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 3. Then, schedule the Veteran for another VA examination before an appropriate physician to determine the etiology of his hemophilia. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a) Identify all current bleeding disorders associated with the Veteran. (b) Determine whether there is clear and unmistakable evidence that the Veteran's hemophilia (or any other diagnosed blood clotting condition) preexisted service. Note that "clear and unmistakable" evidence means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. (c) Regardless of the conclusion to subpart (b), determine whether there is clear and unmistakable evidence that the Veteran's hemophilia was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). (d) If there is not clear and unmistakable evidence that the Veteran's hemophilia preexisted service and was not aggravated by service, then the Veteran must be considered to have been sound at entry, and based upon that premise, the question to answer would be whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's hemophilia had its onset in service or is otherwise related to service. In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, the Veteran's statements regarding in-service injury associated with asthma, and all prior VA and private examinations. A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (West 2014). JOHN J. CROWLEY 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).