Citation Nr: 21024218 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-08 869 DATE: April 22, 2021 REMANDED Entitlement to service connection for vertigo is remanded. Entitlement to service connection for right eye condition secondary to service-connected ischemic heart disease, status post coronary artery bypass graft is remanded. Entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease, status post coronary artery bypass graft graft is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to November 1968. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from an October 2010 and July 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2018 decision, the Board denied entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease, status post coronary artery bypass graft. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a July 2019 order, the Court granted the parties’ Joint Motion for Remand (JMR), vacated the Board’s decision as to the appealed issue, and remanded the matter for further development and readjudication consistent with the JMR. In January 2020, the Board, denied the Veteran’s claim of service connection for vertigo and remanded the claims of entitlement to service connection for right eye condition secondary to service-connected ischemic heart disease, status post coronary artery bypass graft and entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease, status post coronary artery bypass graft. The Veteran appealed the January 2020 Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 order, the Court granted a joint motion for partial remand (JMPR), vacated the Board’s decision as to the appealed issue and remanded the matter for further development and readjudication consistent with the JMPR. The case returned to the Board for further appellate review. Unfortunately, there has not been substantial compliance with the January 2020 Board's remand directives regarding the issues of entitlement to service connection for right eye condition secondary to service-connected ischemic heart disease, status post coronary artery bypass graft and entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease, status post coronary artery bypass graft. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for vertigo is remanded. In the November 2020 JMPR the parties agreed that the Board failed to provide adequate reasons or bases in addressing whether the Veteran’s vertigo is in fact part of his service connected IHD, such that it should be adjudicated along with the initial disability rating of IHD remanded by the January 2020 Board decision on appeal. The record shows that the Veteran’s vertigo symptoms coincide with his service connected IHD. An August 1999 consultation note reports an episode of dizziness while running in 1999. Medical treatment records from February 2006, shows an episode of lightheadedness with jogging. In a November 2016 urgent care note, the Veteran reported dizziness for six hours while at work and had not received a diagnosis despite having similar symptoms in the past. In April 2013, the Veteran’s representative argued that the Veteran experiences “dyspnea, fatigue, angina, dizziness, or syncope” at certain levels of cardiac workload. In further review of the record, the Board notes that the Veteran has not been provided a VA examination with regard to his claim for service connection for vertigo. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran’s medical treatment records document vertigo symptoms that may be related to the Veteran’s service-connected IHD, the Board finds that a remand is necessary to comply with the findings of the JMPR and obtain a VA examination to determine the etiology of any current vertigo, to include as secondary to service-connected IHD. 2. Entitlement to service connection for right eye condition secondary to service-connected ischemic heart disease, status post coronary artery bypass graft. 3. Entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease, status post coronary artery bypass graft. Although the Board regrets the additional delay, further development is warranted regarding the Veteran's claims of entitlement to service connection for right eye condition, secondary to IHD and entitlement to an initial disability rating in excess of 30 percent for IHD status post coronary artery bypass graft. Specifically, despite prior Board remands which addressed the need for additional development regarding private treatment records, the Board observes that additional development remains warranted in this regard. In the most recent January 2020 remand, in pursuant to the July 2019 JMR, the Board required the Agency of Original Jurisdiction (AOJ) to make efforts to obtain and associate with the Veteran’s claims file all medical records for the Veteran from University of Pittsburgh Medical Center (UPMC) Hamot and Erie Retinal Surgery beginning August 30, 2015, including the ECG study performed at University of Pittsburgh Medical Center (UPMC) Hamot on August 30, 2015. 38U.S.C. §5103A; 38C.F.R. §3.159(c)(3). In March 2021, the Veteran’s representative stated that the Veteran’s right eye condition has been causing him problems ever since his time in service. “The Veteran is also service connected for IHD, which causes the capillaries in the back of the eyes to be strain, which could have been misdiagnosed during his time in the military.” The Veteran has been afforded two VA examinations in June 2017 and October 2020. Both VA examiners opined that it was less likely than not that the Veteran’s retina condition was related to his service-connected heart disease. As the requested evidence has not been associated to the claims file, the Board finds that both opinions were based upon an incomplete record and have no probative value. On remand, a new VA examination is required to determine the nature and etiology of the Veteran’s right eye condition, taking into account his service-connected heart disease, the record evidence, and accepted medical principles. 38C.F.R. §3.159(c)(4); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). Additionally, the Board is mindful that the Veteran did not respond to development letters sent by VA in January 13, 2020 and again in February 19, 2020 which attempted to obtain authorization to seek private treatment records from the University of Pittsburg Medical Center (UPMC) Hamot and Erie Retinal Surgery, including the documents pertaining to the ECG study. Significantly, one record in particular, the August 30, 2015 VA treatment record indicated the ECG was scanned in as an attachment and that attachment has not been scanned to the virtual file. A review of the additional VA treatment records associated with the file further notes additional community care notes were scanned in and viewable on VISTA imaging; however, the Board does not have access to VISTA imaging and these scanned attachments have not been made part of the virtual claims file. As these files are part of VA’s record, further efforts should be made to associate them with the claims file. Given that the Veteran's claims on appeal are remanded as discussed above, the Board finds that the Veteran should be given an additional opportunity to authorize VA to obtain the identified private treatment records or to provide them himself. 38 C.F.R. § 3.159(c)(1). The Veteran is advised that he has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The claim for an initial disability rating in excess of 30 percent for IHD must also be remanded to address whether the Veteran’s symptoms of vertigo and lightheadedness are part of his IHD as the parties agreed in the January 2020 JMPR, such that both claims be adjudicated together. The matters are REMANDED for the following action: 1. All records scanned into VISTA imaging, to include the August 30, 2015 ECG must be associated with the claims file. 2. Make reasonable efforts to obtain all of the Veteran’s private medical records beginning August 30, 2015, from University of Pittsburgh Medical Center (UPMC) Hamot and Erie Retinal Surgery, including the documents pertaining to the ECG study performed at on August 30, 2015, at UPMC. If 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 such records, as provided in 38 U.S.C.§ 5103A(b)(2) and 38C.F.R. §3.159(e). 3. After completing the above action, Schedule the Veteran for a VA examination for the purpose of determining the nature and etiology of any disability manifested by vertigo, to include a diagnosis. The examiner must review the claims file and should note that review in the report. A rationale should be offered for the opinion. The examiner should state whether there is any current disability found that is manifested by vertigo. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed disability manifested by vertigo is causally related to active service. The examiner must explicitly note consideration of the Veteran's lay statements with regard to experiencing dizziness “at certain levels of cardiac workload.” The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any disability manifested by vertigo has been caused by service connected IHD. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any disability manifested by vertigo has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected IHD or whether the Veteran’s vertigo symptoms coincide with his service connected IHD. 4. Obtain an addendum opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s right eye condition, to include as secondary to service-connected ischemic heart disease. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including this Remand, and to indicate review of the file in the examination report. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner is asked to state the current diagnosis for any eye condition. (a) For each eye condition found, the examiner should state whether the condition is at least as likely as not (50 percent probability or greater) due to or aggravated by an in-service injury, event, or disease, to include exposure to herbicide agents. (b) For each eye condition found, please indicate whether the condition is at least as likely as not (50 percent or greater probability) proximately due to or aggravated by the Veteran’s service-connected ischemic heart disease status post coronary artery bypass graft. The examiner must comment on the Veteran’s statement that his right eye condition has been causing problems since his time in service and that he could have been misdiagnosed in service. The Board notes that the Court has held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, the VA examiner must provide separate findings and rationales relating to causation and aggravation. The examiner must reconcile any opinion with the evidence of record, citing to the record as appropriate. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.