Citation Nr: 1807772 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-43 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a heart disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. D'Allaird, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to November 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The record before the Board includes multiple diagnoses of heart conditions, including those diagnosed prior to, at separation from, and postservice. Claims must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Consequently, the matter before the Board has been recharacterized. This claim was remanded by the Board in September 2017 for further development. 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 Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claim so that every possible consideration is afforded. The Board remanded this claim in September 2017 to obtain a VA examination. In October 2017 the RO requested an examination through Logistics Health, Inc. An examination was scheduled for October 30, 2017. The Veteran did not appear at the examination. However, a November 2017 report of general information reflects the Veteran informed the RO that he never received notification of this examination. Furthermore, there is no evidence of record showing the Veteran was ever notified of the scheduled examination. Therefore, this claim must be remanded to obtain a VA examination. Additionally, the Board also directed the RO to ask the Veteran to provide releases for VA to obtain pertinent private treatment records which he had identified. The RO made this request by letter dated in September 2017. It does not appear from the record that the Veteran responded to these requests. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, the RO should attempt once again to obtain these outstanding treatment records with the Veteran's assistance. Accordingly, the case is REMANDED for the following actions: (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. Obtain for the record all records of VA evaluations and treatment the Veteran has received for any heart condition (that are not already associated with the claims file). Also, ask him to provide releases for VA to obtain records of any pertinent private treatment, to specifically include Southlake Methodist Hospital. Obtain complete records from the providers identified. If any records sought are unavailable, the Veteran should be so notified. If he authorizes release of records, but the provider in question does not respond to the AOJ's request, he should be advised that ultimately it is his responsibility to ensure that private records are received. 2. After the record is determined to be complete, schedule the Veteran for a VA examination to determine the nature and cause of his heart disability. The claims file and a copy of this remand must be provided to the examiner for review. Any indicated tests or studies should be completed. Based on examination of the Veteran and review of his claims file, the examiner should provide an opinion that responds to the following: (a) Please identify the Veteran's heart disability (or disabilities) by diagnosis(es). (b) Please identify the likely cause for each disability diagnosed. Specifically: (i) is there clear and unmistakable (obvious, manifest, and undebatable) evidence that a currently diagnosed heart disability preexisted the Veteran's service and (ii) if so, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that any preexisting heart disability WAS NOT aggravated (i.e., permanently worsened) during service or that it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to natural progress)? In responding, please specifically discuss Selective Service records indicating that in October 1961 the Veteran was found not acceptable for military service based on systolic murmur and the Veteran's September 1966 separation examination noting tachycardia. (c) If there is no clear and unmistakable evidence that a currently diagnosed heart disability preexisted service, is it at least as likely as not (a 50% or greater probability) that such disability is directly related to his active duty service? If any current heart disability is deemed to be unrelated to service, the examiner should identify the etiology considered more likely, and explain why that is so. A detailed explanation (rationale) is requested 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 claim and may also result in a clarification being requested). 3. The AOJ should then readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C. § 7252 (2012). This remand is a preliminary order and not an appealable decision on the merits of the claim(s). 38 C.F.R. § 20.1100(b) (2017).