Citation Nr: 20004245 Decision Date: 01/20/20 Archive Date: 01/17/20 DOCKET NO. 12-30 576 DATE: January 20, 2020 REMANDED Entitlement to service connection for a cardiac disability, to include coronary artery disease (CAD), coronary artery bypass graft (CABG), and atrial fibrillation, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Navy from January 1951 to May 1954. He died in February 2014, after filing the claim on appeal. The appellant is the Veteran’s surviving spouse and is recognized as the lawful substitute for this claim. See 38 C.F.R. § 3.1010; see also VA 21-0847, dated March 2017; VA Memorandum, dated July 2019. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Jurisdiction of the file is currently with the Philadelphia Pension Center. In October 2019, the appellant was notified that there appeared to be some discrepancy regarding her representation. She was afforded 30 days to respond and was notified that, should she not respond, the Board would assume that the appellant chose to represent herself, and would proceed with the appeal accordingly. There is no evidence of a response from the appellant, and no evidence that she did not receive the October 2019 communication from the Board. As such, the Board will proceed with this case and consider the appellant to be self-represented. The Veteran and the appellant testified at a videoconference hearing before a Veterans Law Judge (VLJ), different from the undersigned, in October 2014. A transcript of the hearing is associated with the claims file. In December 2019, the appellant was notified that the VLJ who presided over the October 2014 hearing was no longer employed at the Board, and she was offered the opportunity to obtain a new hearing with another VLJ. The appellant returned communication that she did not wish to have a new hearing. See Hearing Communication, dated December 2019. This case was previously before the Board in December 2014, April 2015, July 2015, and November 2016. In December 2014 and April 2015, the claim for service connection for CAD was remanded to obtain VA examinations to address the nature and etiology of the claimed disability, with the April 2015 remand specifically directing the Agency of Original Jurisdiction (AOJ) to obtain an opinion as to whether there was aggravation of the Veteran’s CAD by his service-connected asbestosis. In July 2015, the Board denied the Veteran’s claim for service connection for CAD, to include as secondary to his service-connected asbestosis. The Veteran appealed the July 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court granted a Joint Motion for Remand (JMR) and remanded the claim back to the Board for further consideration. In November 2016, the case was remanded to obtain outstanding private treatment records, in compliance with the September 2016 JMR. The AOJ attempted to obtain the private records specified in the November 2016 Board remand. See VA Form 21-4142, dated December 2016. It was determined, however, that the specified records had been destroyed. See Correspondence, dated January 2017; VA Form 21-0820, dated December 2016. The unavailability of the records was documented and associated with the file. The case has been returned to the Board for appellate consideration. Unfortunately, the Board finds that another remand is necessary for development for proper adjudication of this case. The Board has also expanded the appellant’s claim for CAD as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A VA opinion was obtained to determine the nature and etiology of the Veteran’s CAD, considering a review of the file alone, in August 2013. He underwent a VA examination for the same purpose in March 2015, with an addendum opinion addressing aggravation of his CAD due to his service-connected asbestosis in June 2015. The August 2013 VA provider opined, based upon the reviewed electronic records alone, that it was less likely as not that the Veteran’s cardiac condition was causally related to his service-connected asbestosis. The provider supported her opinion by stating that a review of the literature did not show a direct causative effect between asbestosis and either CAD or aortic stenosis. This opinion, however, did not address a letter from the Veteran’s private provider that indicated it was conceivable that the Veteran’s asbestos exposure increased his shortness of breath, which made him more likely to have atrial fibrillation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Third Party Correspondence, dated July 2010. The March 2015 VA examination was based upon both a review of the record and an in-person examination. The examiner noted that the Veteran had the following cardiac disabilities: CAD, supraventricular arrhythmia, heart valve replacement, cardiomyopathy, implanted pacemaker, and a coronary artery bypass graft. The examiner opined it was less likely as not that the Veteran’s CAD was caused by his asbestosis. The examiner supported his opinion by asserting that there is no evidence in the medical literature that asbestosis caused CAD. The examiner addressed the July 2010 private provider’s letter by stating: “…he does not refer to CAD. Instead, that statement mentions atrial fibrillation. It is less likely than not that the atrial fibrillation was the result of asbestosis. It is more likely than not due to CAD and cardiomyopathy.” The examiner’s opinion regarding atrial fibrillation is merely conclusory in nature, without a thorough rationale based upon the evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Moreover, the examiner did not consider whether any of the Veteran’s cardiac conditions were aggravated by the Veteran’s asbestosis. 38 C.F.R. § 3.310; see Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The June 2015 addendum opinion asserted it was less likely as not that the Veteran’s asbestosis aggravated his CAD as medical literature did not support the notion that asbestosis aggravates CAD. The examiner addressed the July 2010 private provider’s statement by noting that the private opinion addressed conceivable causation of atrial fibrillation but did not address CAD. The examiner supported the opinion by noting medical literature did not support that asbestosis aggravated CAD. The examiner, however, did not address in the opinion whether the symptomatology of the Veteran’s asbestosis, to include shortness of breath and coughing, nor the specific treatment thereof, aggravated the Veteran’s cardiac disability. See Stefl, 21 Vet. App. at 120; Nieves-Rodriguez, 22 Vet. App. at 295. In light of the above, the case should be remanded to obtain a VA opinion to consider the nature and etiology of each of the Veteran’s cardiac disabilities, to include consideration of all of the evidence of record. See Clemons v. Shinseki, 23 Vet. App. at 1; Nieves-Rodriguez, 22 Vet. App. at 295. The matter is REMANDED for the following actions: 1. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who have provided treatment for the Veteran’s disabilities on appeal. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate any outstanding private treatment records with the claims file. The AOJ should also ensure that any outstanding VA treatment records have been obtained and associate with the case file any outstanding VA treatment records. This should include any outside treatment records scanned and associated with the VISTA imaging system, not already included with the VA treatment records in the electronic claims file. All attempts to obtain these records, to include communication with the appellant, medical providers, and any negative communication concerning these records should be clearly documented in the record and associated with the file. 2. Obtain a VA opinion from a medical provider concerning the nature and etiology of the Veteran’s cardiac disabilities. If possible, the provider affording the opinion should be a cardiologist or other provider with demonstrated expertise in cardiology, and the nature of pathology thereof. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should answer the following questions: (a.) Identify each diagnosable cardiac disability applicable to the Veteran during the period on appeal. The examiner should specifically address previous findings of left ventricular hypertrophy, soft systolic murmur, coronary artery disease, aortic valve replacement, coronary artery bypass graft, atrial fibrillation, and cardiomyopathy. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified cardiac disability had its clinical onset during active service or is related to any in-service disease, event, or injury, to include, but not limited to, exposure to asbestos. (c.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified cardiac disability was caused or aggravated by the Veteran's service-connected residuals of asbestos exposure. This opinion should include a specific discussion of the impact of shortness of breath, hemoptysis, and any treatment for this disability on the Veteran’s cardiac disabilities in addressing both causation and aggravation. The examiner should specifically address the opinion of the private provider, dated July 2010, that indicated it was “conceivable that the asbestosis contributed to [the Veteran’s] lung disease which has increased his shortness of breath and made him more likely to have atrial fibrillation…” In providing this opinion, the examiner should consider and address the Veteran's lay statements of current functional symptomatology and the onset thereof, as included in communication with the Board or any third party, as testified in his October 2014 hearing before the Board, or as contained in the subjective or history component of any medical records. (Continued on the next page)   A thorough rationale of all opinions provided, considering all the evidence of record, would be of considerable assistance to the Board. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.