Citation Nr: 21005264 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-11 528 DATE: February 1, 2021 REMANDED Entitlement to service connection for a heart condition (claimed as a heart attack) to include hypertension (HTN) is remanded. REASONS FOR REMAND The Veteran had active duty service with the U.S. Navy from July 1976 to June 1978. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Subsequently, in July 2019, the Board remanded claim for provision of an examination to identify all current cardiovascular disabilities, and to secure nexus opinions for each diagnosed condition. Unfortunately, the Agency of Original Jurisdiction (AOJ) failed to comply with the Board’s remand directives with regard to the Veteran’s diagnosed HTN. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Another remand is warranted. Pursuant to the Board’s July 2019 remand directives, the Veteran underwent VA heart and hypertension examinations in January 2020. Hypertension, hypertensive heart disease, and hypertrophic cardiomyopathy were diagnosed. The examiner felt there was no evidence of record to corroborate allegations of a heart attack in service, and noted mild left ventricular hypertrophy, mild left atrial dilation, and mild regurgitation in the tricuspid valve did not warrant diagnoses; imaging indicated that despite these functional observations, the structures were “normal.” The hypertrophic cardiomyopathy was stated to “usually” be inherited, and “literature” did not show a nexus between hyperventilation and chest pains and any currently diagnosed condition. The examiner additionally indicated hypertension was diagnosed in 1970, six years prior to service. When asked to clarify, he repeated this finding and cited multiple in-service and recent blood pressures showing, in his view, a lack of aggravation of the pre-existing condition beyond the natural progression. The medical opinion is inadequate. There is effectively no rationale. The examiner simply states his conclusion that there is no nexus based on unspecified “literature.” Additionally, his statements indicate he was considering whether the reported chest pain and hyperventilation in service caused the claimed conditions, instead of addressing whether the former were manifestations, not causes, of the latter. Further, that hypertrophic cardiomyopathy is “usually” inherited does not address its origins in this Veteran. Finally, it is unclear how the examiner determined hypertension pre-existed service; at entry, a blood pressure of 150/80 was noted, but no related condition was diagnosed, and subsequent service records repeatedly note far lower readings. A Veteran is presumed sound at entry except for conditions noted on the entrance examination or shown by clear and unmistakable evidence to have pre-existed service AND to not have been aggravated beyond the natural progression. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Given the lack of comment at entry, that presumption cannot be rebutted, and the examiner applied an incorrect standard and facts in rendering an opinion. Remand is required for an adequate opinion. Obtaining updated VA and private records will assist with such. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed releases for any private care providers who have treated him for his claimed cardiac conditions. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Obtain updated VA treatment records. 3. Schedule the Veteran for VA heart and/or hypertension examinations with an examiner other than the doctor who conducted the February 2020 examinations. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not that the Veteran’s hypertension, hypertrophic cardiomyopathy, or any other identified cardiovascular condition was at least as likely as not caused or aggravated by military service. The examiner is notified that hypertension is not considered to have pre-existed service. The examiner should discuss documented episodes of epistaxis and complaints of chest pain and hyperventilating (to include reference to the ECG taken at the time) in opining as to whether any claimed cardiovascular condition first manifested or was indicated in service. 4. Thereafter, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.