Citation Nr: 21021839 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 06-24 543 DATE: April 14, 2021 REMANDED Entitlement to service connection for a heart disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1977 to September 1980. The Veteran also served on active duty from September 1980 to December 1981; however, the latter period of service is not honorable for VA purposes. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In November 2009 the Board remanded the issue on appeal to determine the nature of the Veteran’s discharge for VA purposes. On remand, the RO was directed to issue a supplemental statement of the case (SSOC) if the issue was not granted. In October 2020 the Board again remanded the issue on appeal since the RO issued an administrative decision about the nature of the Veteran’s discharge; however, it did not grant service connection or issue a SSOC. After an October 2020 SSOC considered the record, this matter was returned to the Board for appellate consideration. The Board notes that the Veteran filed motion regarding a clear and unmistakable error in the March 2018 VA determination. See 8/21/2019 VA Form 21-526EZ. However, the Board finds that this motion is moot and premature as the October 2020 Board decision found that the January 2005 claim was not final thus this matter has been pending since August 2004. As such, the March 2018 rating decision is not final and cannot be collaterally attacked. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for a heart disability. After review of the record, another remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for a heart disability. Specifically, the Veterans contends that his heart disability is the result of exposure to radiation while stationed in Camp Humphreys in Korea. See 1/22/2004 Correspondence; see also 10/19/2004 VA Form 21-4138. Service treatment records showed that the Veteran complained of chest pain, dizziness, and dyspnea/heavy breathing and was diagnosed with viral pericarditis. Additionally, service treatment records showed that the Veteran had sinus bradycardia and occasional premature ventricular contractions. See 12/4/2003 STR – Medical, at pages 11, 14, 25, 39, and 86. Post-service medical treatment records also show that the Veteran has complained of dizziness and chest pain. See 3/16/2018 CAPRI, at page 274. Additionally, the Veteran was diagnosed with arrythmia, chronic ischemic heart disease, cardiomyopathy, mitral valve stenosis, ventricular tachycardia, disorder of the prosthetic cardiac valve, heart murmur, and congestive heart failure. See id. at pages 130, 169, 194, 204, 209, 210, 342, and 522; see also 4/19/2005 Medical Treatment Record – Non-Government Facility, at page 2; 4/17/2006 Medical Treatment Record – Government Facility, at page 1. During a February 2008 VA examination, the reviewing clinician stated that there was no current diagnosis because the in-service disability of viral pericarditis had resolved. Additionally, the reviewing clinician opined that the Veteran’s mitral regurgitation due to endocarditis was not related to the in-service pericarditis disability. As rationale, the reviewing clinician reported that the mitral regurgitation and subsequent issues and surgeries were related to a separate illness, mainly endocarditis, presumably related to dental intervention. See 2/11/2008 C&P Examination. The Board finds this opinion inadequate. The reviewing clinician did not use the proper standard when he rendered his negative nexus opinion. Additionally, the reviewing clinician did not base his conclusion on the full claims record, since more recent medical records, not examined by the reviewing clinician, showed that the Veteran was diagnosed with arrythmia, chronic ischemic heart disease, cardiomyopathy, mitral valve stenosis, ventricular tachycardia, disorder of the prosthetic cardiac valve, and heart failure. As such, on remand, the RO is schedule a VA cardiac examination with the appropriate clinician to determine if the diagnosed arrythmia, chronic ischemic heart disease, cardiomyopathy, mitral valve stenosis, ventricular tachycardia, disorder of the prosthetic cardiac valve, and heart failure are related to the in-service viral pericarditis, chest pain, dizziness, dyspnea/heavy breathing, sinus bradycardia, and occasional premature ventricular contractions. Additionally, the record showed service in Korea. See 11/12/2004 Military Personnel Record, at page 4. Further, in April 2006 the agency of original jurisdiction (AOJ) notified the Veteran about providing information regarding his alleged radiation exposure. See 4/17/2006 VA Form 21-4138. The record does not show if the Veteran provided the requested information. In June 2006 the AOJ filed a finding that information about the Veteran’s radiation exposure was not of record. 6/20/2006 VA Form 21-3101. VA has a duty to search for records that would assist a Veteran in the development of his claim, and for which the Veteran has provided the Secretary information sufficient to locate such records, to include making as many requests as are necessary and ending only when such a search would become “futile.” In Gagne v. McDonald, the Court of Appeals for Veterans Claims (CAVC) defined futile, under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159, as “a search where it is apparent that the sought-after records are either not in existence or not in the possession of the record’s custodian.” 27 Vet. App. 397, 403 (2015). The CAVC held that “the duty to assist required VA to submit multiple 60-day record searches” to the Joint Services Records Research Center (JSRRC) and that “the 13-month period in [that] case” was not “unreasonably long” where the appellant provided information regarding his stressor. Id. at 404. The Board finds the facts in this case to be analogous to those in Gagne in that the VA’s statutory duty to assist is not limited by the electronic portal of the JSRRC (now VBA Records Research Center (RRC)). As noted above, the record shows that the Veteran served in Korea. Accordingly, further development is necessary to verify possible radiation exposure in Korea. As such, on remand, the RO is to submit as many requests as needed to the RRC to make this determination. This matter is REMANDED for the following actions: 1. Obtain any and all of the Veteran’s outstanding records from appropriate repositories, to include record of disciplinary actions. All records and/or responses received are to be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). 2. After completion of step #1, attempt to verify the claimed exposure to radiation in Korea through the appropriate entities, such as the RRC. If needed, contact the Veteran and request that he provide details regarding his alleged in-service radiation exposure in Korea. If needed, send sequential requests to the RRC for the entire period provided by the Veteran in an effort to verify the Veteran’s exposure to radiation. The RRC is to be provided with any necessary documentation, to include any relevant service records as well as any statements submitted by the Veteran detailing any duties that required him to be at or near the base perimeters. If necessary, make sequential requests to the RRC or other repository to cover the entire time period provided by the Veteran. All requests and responses received should be associated with the claims file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the development conducted). A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of steps #1 and #2, schedule a cardiac examination with the appropriate clinician to determine the nature and etiology of the Veteran’s heart disability. The clinician is to review the virtual file, including a copy of this Remand. After a review of the claims file, the examiner must address: (a.) Compile a list of all heart disabilities. (b.) Then, for EACH heart disability identified on the review of the record (see the Remand body above listing current diagnoses and where they can be found in the record), to include arrythmia, chronic ischemic heart disease, cardiomyopathy, mitral valve stenosis, ventricular tachycardia, disorder of the prosthetic cardiac valve, and heart failure, state whether it is at least as likely as not (probability of 50 percent or more), that any of the Veteran’s heart disabilities, in whole or part, had their onset in service. **In doing so, please address the Veteran’s contentions that his heart disability is the result of exposure to radiation while stationed in Camp Humphreys in Korea. See 1/22/2004 Correspondence; see also 10/19/2004 VA Form 21-4138.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.