Citation Nr: 21012680 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-03 374 DATE: March 4, 2021 REMANDED The issue of entitlement to service connection for a heart disability is remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from February 1970 to November 1971 and from October 1972 to December 1991 in the United States Army and the United States Air Force, respectively. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2019, the Veteran and his spouse testified at a Board hearing before the undersigned. A transcript of the hearing is of record. In February 2020 and August 2020, the Board remanded the case for further development. Because the requested development has not been completed, however, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection for a Heart Disability A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Board remanded this appeal in February 2020 so that the Agency of Original Jurisdiction (AOJ) could obtain a VA examination and addendum VA medical opinion, and then readjudicate the Veteran’s claim for service connection for a heart disability. In June 2020, the AOJ issued a supplemental statement of the case (SSOC) continuing to deny service connection for a heart disability. In the February 2020 remand, the Board found that the issue of entitlement to service connection for a heart disability should be remanded to obtain an additional VA medical opinion. The Board noted at that time that the Veteran had previously been provided a VA examination regarding this issue in June 2017. The examiner provided a diagnosis of mild mitral valve prolapse with an estimated clinical onset in 2001. The examiner then opined that it was less likely than not that this condition was incurred in or caused by service. However, the examiner did not comment upon other diagnoses of record. See, e.g., January 2018 Heart Conditions Disability Benefits Questionnaire by Dr. Paracha (listing current diagnoses of hypertensive heart disease, venous insufficiency, palpitations, and wide PRS tachycardia). Additionally, at the November 2019 Board hearing, the Veteran described a fluttering sensation in his chest, which began during service and continued to the present. See Hearing Tr. at 20-21. The Board found that the Veteran was competent to report experiencing such a symptom as well as describing its continuity. The Board concluded that he had done so credibly in the instant case. As such, an additional VA medical opinion was needed to address all diagnosed heart disabilities of record as well as the Veteran’s lay reports of in-service onset of symptoms with continuity since service. Pursuant to the February 2020 remand, the Veteran was afforded a VA examination in May 2020. The Veteran at that time endorsed arrythmia and occasional chest pain since the late 1980s. The Veteran described a feeling of a fluttering at the time of the examination, and reported that a dry cough is his first indicator that he is having a flare. He stated that he typically has two to three flares of fluttering a week with activities and stress and that the flares generally last for several hours. The examiner diagnosed the Veteran with an atrioventricular (AV) block, hypertensive heart disease, and venous insufficiency. The examiner determined that a June 2018 EKG also reflected evidence of cardiac hypertrophy. The examiner opined that the Veteran’s hypertensive heart disease was at least as likely as not associated with his hypertension. The examiner noted that the Veteran took medications for hypertension and arrythmia and was diagnosed with an AV block in 2019. Significantly, however, the examiner did not address whether the Veteran’s cardiac hypertrophy or arrythmia were related to service, to include the Veteran’s contentions of a fluttering sensation since service. The examiner referenced venous insufficiency and AV block but did not provide nexus opinions. The examiner also did not address mitral valve prolapse, palpitations, and wide PRS tachycardia. Based on the foregoing deficiencies, the Board found the opinion inadequate to decide the claim and remanded for an addendum VA medical opinion. Pursuant to the August 2020 remand, an addendum VA medical opinion was obtained in December 2020. In rendering a negative nexus opinion, the VA examiner did not provide a rationale as to why the Veteran’s credible reports of a fluttering sensation in his chest, arrythmia, and chest pain in service are not related, specifically as precursors, to his current diagnosed heart disabilities, such as arrythmia. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). By issuing an SSOC without obtaining an adequate VA opinion, the AOJ did not substantially comply with the Board’s February 2020 remand order. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The matter is REMANDED for the following actions: 1. Send the Veteran’s claims file to an appropriate VA cardiologist for the issuance of a medical opinion regarding the nature and etiology of any current heart conditions. The clinician should review the Veteran’s entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. If the clinician determines that an examination is necessary, one should be provided. Thereafter, the clinician should address the following: (a.) Please identify any current heart conditions by diagnosis. “Current” is defined as any diagnosis of record identified since the filing of the claim in May 2014 to the present. The heart conditions need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. The Board notes that the record shows past diagnoses of mitral valve prolapse, arrythmia, cardiac hypertrophy, hypertensive heart disease, AV block, venous insufficiency, palpitations, and wide PRS tachycardia. These disorders should be considered and discussed, in addition to any other disorders that may be found. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the examiner were to find that arrythmia or mitral valve prolapse is not a current disability, then the explanation should include a discussion of the medical records, prior VA examinations, as well as the Veteran’s lay statements regarding his condition. (b.) For each condition identified in part (a), is it at least as likely as not (50 percent probability or more) that the condition had its onset in, was caused by, or is otherwise related to service? In providing responses to part (b), please directly address the Veteran’s November 2019 hearing testimony that he first began experiencing a fluttering sensation in his chest and chest pain in service that has continued to the present. (c.) In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim. (d.) A complete rationale for any opinion rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.