Citation Nr: 21001101 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-21 851 DATE: January 7, 2021 REMANDED Entitlement to service connection for heart failure is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1975 to November 1978. He then served on active duty in the United States Navy from December 1978 to December 1982. He had further service with the Tennessee Army National Guard from June 1987 to December 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2019 Board videoconference hearing. A transcript of that hearing has been associated with the claims file. Entitlement to service connection for heart failure is remanded. In a December 2019 decision, the Board reopened the matter of service connection for heart failure and remanded it for a VA examination. The Veteran was afforded a VA heart conditions examination in January 2020. In opining against service connection, the VA examiner did not address the Veteran’s assertion at the August 2019 Board hearing that he continued having cardiac symptoms after service. Further, the examiner did not address a February 29, 1980 service treatment record which notes that the Veteran was "also suffering from possible hypertension." A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the examiner did not address the Veteran’s assertion of continuity of symptoms and as they did not address the notation of possible hypertension while in service, the Board finds the examination is inadequate. As such, a remand for a new VA examination is required. Additionally, the Veteran testified at the Board hearing that while on service he went to the hospital in Key West while on active duty as he believed he was having a heart attack. The Board notes that the Veteran did not elaborate as to whether this was a civilian hospital or the naval medical center in Key West. The Veteran further suggested that he presented to private physicians between his discharge and eventual diagnosis in 2003. On remand, the RO should reach out to the Veteran and his representative to identify these providers and attempt to obtain any relevant treatment records. The matters are REMANDED for the following action: 1. Reach out to the Veteran and his representative to have them identify any private physicians/medical facilities relevant to his claimed heart condition from his discharge from the Navy to his eventual diagnosis. For any physician/medical facility identified, ask the Veteran to complete a VA Form 21-4142, then make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Reach out to the Veteran and his representative to have them clarify whether the Key West hospital he referenced in his July 2020 letter is a private hospital or the Naval Medical Center. For any the facility identified, ask the Veteran to complete a VA Form 21-4142, then make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for his heart failure. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s heart failure at least as likely as not related to service, including claimed sepsis? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the Veteran’s heart failure (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must address the Veteran’s contentions that he went to sick call many times while on active duty and was told he had heart flutters which were normal and nothing to worry about it and that he was told several times that he had a heart murmur while on active duty. The examiner’s attention is invited to the February 29, 1980 service treatment record which notes the Veteran was "also suffering from possible hypertension." The examiner’s attention is invited to the November 19, 1982 service treatment record which notes the Veteran reported having right mid-sternal chest pain for 6 hours. The pain was described as non-radiating and not accompanied by dyspnea, diaphoresis, palpitation or cough. An EKG was noted as being within normal limits. Intercostal muscle strain was diagnosed. The examiner’s attention is invited to the December 3, 1982 report of medical history for separation in which the Veteran asserted having pain or pressure in his chest, as well as heart palpitations. The examiner’s attention is invited to the August 23, 1986 report of medical examination which notes the Veteran was found physically qualified for a commission in the National Guard. The examiner’s attention is invited to the October 8, 1986 private treatment record from Middle Tennessee Medical Center which notes the Veteran had regular heart rate and rhythm with no murmur. The examiner’s attention is invited to the June 27, 1987 Service School Academic Evaluation Report which notes the Veteran had "undergone a year-long program of vigorous physical and mental training at the Tennessee Military Academy's Officer Candidate School." 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.