Citation Nr: 1803507 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-14 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to November 1, 2008 for a grant of service connection for coronary artery disease associated with hypertension. ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969, with combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, this matter was remanded by a different Veterans Law Judge; it has since been assigned to the undersigned. As mentioned in the December 2015 Board remand, the Veteran's request for a Board hearing was withdrawn in written correspondence dated July 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND During development to determine whether the record demonstrated coronary artery disease at the time of the Veteran's original April 1995 claim for arteriosclerosis, see Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989), the issue arose as to whether the Veteran actually has or ever has had coronary artery disease. Pursuant to Board remand, the Veteran underwent a VA heart examination in July 2016. The examiner opined that the Veteran did not have significant coronary artery disease, but only provided a conclusory statement that simply repeated evidence of record without proper discussion of how such medical evidence supports her opinion. Particularly troubling with the opinion is that when reciting the history of the claimed heart disability, the examiner did not acknowledge the findings of arteriosclerosis as noted in chest X-rays of June 1994 leading to a later diagnosis of coronary artery disease; and, the diagnosis of hypertension in November 2008. As a result, remand is necessary for an adequate opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). No matter the examiner's conclusion as to diagnosis, he or she should discuss the evidence of heart disease of record at the time of the original April 1995 claim. In December 2015, the Board remanded this matter with instructions to the AOJ to search for missing VA records, to include a November 1994 "Agent Orange examination" (as reported by the Veteran during his February 2011 VA heart examination), and that if such records were unavailable a formal finding of unavailability should be of record. Although the AOJ retrieved VA records from November 1994, they do not include the results of an Agent Orange examination; rather, the progress notes merely allude to an "Agent Orange Social Summary." There is no formal finding of unavailability of record. Accordingly, remand is necessary for compliance with Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Results from September 2001, January 2004, December 2005, December 2006, and July 2009 electrocardiograms (EKGs) are not of record and should also be sought on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's heart disability from August 2016 to the present. All missing pertinent VA examination and treatment records, including the results of the Agent Orange Social Summary in approximately 1994, and the results of a September 2001 EKG (which, the record reflects, was placed in the paper chart at that time) and January 2004, December 2005, December 2006, and July 2009 EKGs (which, the record reflects, could be found by referring to the "Muse EKG" at those times) should be obtained. All actions undertaken should be reflected in the claim file, and if such records are not found, a formal finding should be made and placed in the record. 2. After the above development has been completed, the AOJ should provide the claim file to an examiner of adequate qualification, with examination of the Veteran only if deemed necessary by an examiner. After review of the record (including Board remands), the examiner must provide a response to the following: (a) Does the Veteran have, or has he ever had, coronary artery disease? Even if the Veteran has never had coronary artery disease, the relationship between coronary artery disease and the May 1994 chest x-ray impression of arteriosclerosis and November 2008 VA examination abnormal exercise treadmill test MUST be discussed. (b) If the Veteran has or has ever had coronary artery disease, please state whether the May 1994 chest x-ray impression of arteriosclerosis and November 2008 VA examination abnormal exercise treadmill test (and any other pertinent evidence) are related to such disease. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.) If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board 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 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).