Citation Nr: 1829779	
Decision Date: 08/06/18    Archive Date: 08/17/18

DOCKET NO.  12-17 201	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a heart disability.


REPRESENTATION

Veteran represented by:	Daniel F. Smith, Attorney


ATTORNEY FOR THE BOARD

R. Gandhi, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1965 to March 1967.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

Upon review of the record, the Board finds that the issue must be once again remanded.  The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim.

Evidence of record indicates that the Veteran failed to report for VA echocardiogram in February 2018.  However, there is no indication that the Veteran was provided the requisite notice for the echocardiogram.  The Board therefore finds that a remand is required to afford the Veteran another opportunity to appear for another echocardiogram to assist in his claim. 

Additionally, the Board finds that remand is needed in order to obtain a new examination and etiology opinion.  The February 2018 examiner noted that the Veteran was experiencing angina and dyspnea; however, the examiner did not discuss what was causing the Veteran to experience such symptoms.  It remains unclear if such symptoms are related to a possible heart condition.  Furthermore, the examiner found that the Veteran did not have a current condition, but the examiner also found that "The limitation in METs level is due to multiple medical conditions including the heart condition(s)."  This internal inconsistency further underscores the need for a new examination and etiology opinion.  

Accordingly, the Board finds a remand is warranted for further evidentiary development.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision").

Accordingly, the case is REMANDED for the following action:

1.  Assist the Veteran in associating with the claims folder updated treatment records.

2.  After any additional records are associated with the claims file, schedule the Veteran for a VA examination, WITH AN EXAMINER OTHER THAN THE ONE WHO CONDUCTED THE FEBRUARY 2018 EXAMINATION, to determine the nature and etiology of the heart disability.

The claims file should be made available to the examiner for review in connection with the examination.  Based on review of the ENTIRE record and examination of the Veteran, the examiner should respond to the following: 

(a) Is the Veteran's heart condition a congenital defect, a congenital disease, or an acquired disorder?  For purposes of VA compensation, a congenital "defect" is defined as a condition that is more or less stationary in nature, whereas a congenital "disease" is defined as a condition capable of improving or deteriorating.

(b) If it is determined that the Veteran has a congenital defect, is it at least as likely as not (a 50 percent or greater probability) that this defect was subject to a superimposed disease or injury during service?  If the answer is "Yes," please describe the resultant disability. 
(c) If it is determined that the Veteran has a congenital disease, was the Veteran's December 1966 documented in-service grade II systolic murmur manifestations of the congenital disease?  

* If so, did this disease clearly and unmistakably (i.e., undebatably or to the highest degree of medical certainty) exist prior to the Veteran's entry into active duty service?

* If the disorder clearly and unmistakably existed prior to service, was the disease clearly and unmistakably NOT aggravated by military service?  In this context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disease.

(d) If the congenital disease clearly and unmistakably did not first manifest prior to service, then assume for the purposes of answering the following question that the claimed condition did not exist prior to service:

* Is it at least as likely as not (a 50 percent or greater probability) that the heart condition was incurred in or is otherwise etiologically related to active military service?

(e) Does the Veteran suffer from any kind of functional impact from chest pain?

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions.

The Board notes that on the Veteran's November 1964 induction examination report, the Veteran's heart was marked abnormal, with a note of a grade II systolic murmur; a December 1966 service treatment record reflected a grade II systolic murmur; May 1999 and February 2018 VA examination reports included a diagnosis of stable angina and dyspnea; an August 2013 VA primary care note includes an assessment of an incomplete right bundle branch block (RBBB) per an EKG; and April 2014 and March 2017 VA primary care notes include assessments of a systolic murmur.  The examiner must address these facts, and any other relevant facts identified, in rendering an opinion as to whether it is as at least as likely as not that the Veteran's current heart disability is related to service.  Any such opinion must be supported with an adequate rationale.

The examiner must provide the rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

3.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2017).

4.  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

5.  After completing any additional notification or development deemed necessary, the Veteran's claim should be readjudicated.  If the claim remains denied, the Veteran and his attorney should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).

_________________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).
Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.