Citation Nr: 1808042 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-19 931A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for coronary heart disease/ischemic heart disease (heart disability). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jasmin C. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1972 to April 1973; February 1991 to September 1991; and March 2004 to February 2007, including service in Kuwait, Iraq, and during Operation Desert Shield/Storm. The Veteran had additional National Guard service. His awards and decorations included the Bronze Star Medal, Iraq Campaign Medal, and Global War on Terrorism Service Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). In July 2017, the Veteran testified before the undersigned at a video conference hearing. A copy of the transcript has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the nature and etiology of the Veteran's heart disability. The Veteran has asserted that his heart disability was either caused by or aggravated by his period of service. In July 2017, the Veteran testified before the undersigned at a video hearing and stated that his heart condition originated during his period of active military service from February 1991 to September 1991, in preparation of deployment for Desert Storm. Specifically, the Veteran claimed he failed an EKG and a thallium stress test was inconclusive, but he was cleared for duty. The Veteran has also alleged that his heart condition was aggravated by his period of active military service from March 2004 to February 2007. A Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board notes that some of the Veteran's service treatment records were unavailable and it was determined that further attempts to obtain the records would be futile. However, the Veteran submitted service treatment records and they have been associated with the claims file. A March 1991 stress test revealed an impression of stress thallium showing no definitive evidence for infarct or ischemia. On examination for Desert Storm Demobilization in April 1991, the Veteran's heart was noted as normal. Private treatment records indicate the Veteran was diagnosed with coronary artery disease in February 2000 and underwent coronary artery bypass surgery. A November 2001 VA Report of Medical Examination noted that the Veteran's heart was normal, but the Veteran reported a history of heart problems. Dr. P.L. stated in a November 2001 private treatment letter that an October 2001 cardiac examination was unremarkable and an EKG showed no evidence of left ventricular dysfunction or valvular heart disease. In November 2003, Dr. P.L. noted the Veteran had stable cardiac status. The Veteran submitted a February 2012 opinion by Dr. P.L. stating that it was as likely as not that the Veteran's 1991 examination identified medical evidence of his current heart condition. The opinion does not address whether the Veteran's heart condition was caused or aggravated by his military service. A March 2012 private stress test revealed clinically positive results for angina and electrically positive results for ischemia. As noted above, VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the veteran's disease or injury existed prior to service and clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. In light of the foregoing, the Board finds that a VA opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's file to an appropriate VA examiner. The examiner should receive a copy of this remand and review the Veteran's file. The examiner should consider all medical records associated with the file. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Based on review of the record, the examiner should determine: (a) Is it clear and unmistakable that the Veteran entered any of his periods of active military service with a pre-existing heart condition? The examiner is advised that the Veteran served on active duty from July 1972 to April 1973; February 1991 to September 1991; and March 2004 to February 2007. (b) If YES, is it clear and unmistakable that the Veteran's pre-existing heart condition WAS NOT aggravated beyond the natural progress of the disorder by his active military service? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. (c) If the Veteran DID NOT clearly and unmistakably (i.e., highest degree of medical certainty) enter active military service with a pre-existing heart condition, is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current heart condition is etiologically related to any symptomatology noted during such service? The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means "with a much higher certainty than 'at least as likely as not' or 'more likely than not.'" In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include any assertions as to onset and continuity of heart disease symptoms. Specifically, the examiner should consider Dr. P.L.'s February 2012 finding that the Veteran's 1991 examination during his period of active military service from February 1991 to September 1991 identified medical evidence of his current heart condition. The examiner should explain the medical basis for the conclusions reached. The examiner should provide reasons for all opinions. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should state, whether the inability is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general, or there is additional evidence, which if obtained, would permit the opinion to be provided. 2. Thereafter, readjudicate the issue on appeal. If the benefits sought remain denied, provide the Veteran with a supplemental statement of the case, and afford him a reasonable opportunity to respond before the file is returned to the Board for further consideration. The appellant 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 (2012). _________________________________________________ JENNIFER HWA 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).