Citation Nr: 18124001
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 10-36 582
DATE:	August 6, 2018
REMANDED
Entitlement to service connection for a heart condition with chest pain is remanded.
Entitlement to service connection for hypertension is remanded.
Entitlement to service connection for a kidney condition, to include as secondary to a heart condition or hypertension, is remanded.
Entitlement to service connection for a seizure disorder, to include a condition of the brain, is remanded.
Entitlement to nonservice-connected pension, for the period prior to March 4, 2013, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from June 1974 to June 1976.
In February 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record.
In July 2013 and in September 2016, the current issues were remanded for additional development.
1. Entitlement to service connection for a heart condition with chest pain.
2. Entitlement to service connection for hypertension.
3. Entitlement to service connection for a kidney condition, to include as secondary to a heart condition or hypertension.
4. Entitlement to service connection for a seizure disorder, to include a condition of the brain.
Following the Board’s September 2016 remand, VA treatment records were associated with the claims file which document that the Veteran has been treated by private medical providers, and the Board notes that the outstanding records of such private treatment may be relevant to the service connection claims currently on appeal.
Specifically, VA treatment records in October 2014 and January 2015 indicated that the Veteran had recently undergone a cardiac MRI at Jackson Memorial Hospital; however, the claims file does not contain the report of this private MRI.  In addition, a January 2017 VA treatment record noted that he had fallen a few days ago (after he felt lightheaded, had palpitations, and then passed out) and that he was taken afterwards to North Shore Medical Center by ambulance.  Thereafter, a February 2017 VA treatment record noted that an outside medical record from North Shore Medical Center had been scanned into Vista Imaging; however, a copy of this scan is not currently available for review in the claims file.  Furthermore, March 2017 VA treatment records documented that he was approved under the Veterans Choice Program to undergo a heart PET CT scan at Jackson Memorial Hospital, which was scheduled first on March 31, 2017 and then rescheduled on April 7, 2017; thereafter, a June 2017 VA treatment record noted that he had not attended his Choice appointment but wanted to reschedule it.
On remand, all pertinent outstanding private treatment records should be obtained.  
Additionally, the VA opinions obtained on the issues of heart disease and hypertension are inadequate for rating purposes and addendum opinions should be obtained.  Specifically, the July 2017 opinion on the heart disease does not reflect that the examiner considered the Veteran’s lay statements regarding continuity of symptomatology of chest pain since service and the opinion appears to be based on a finding that there was a lack of medical documentation in service and after service.  The July 2017 opinion on hypertension, while noting the argument that in-service blood pressure readings reflected pre-hypertension, did not clearly explain whether such readings met the criteria for pre-hypertension, and if so, what bearing the pre-hypertension had on the relationship between the Veteran’s current hypertension and his active duty service.  As such, after all treatment records have been obtained, additional opinions must be obtained on these matters.
5. Entitlement to nonservice-connected pension, for the period prior to March 4, 2013.
The Veteran filed the current claim for nonservice-connected pension on November 22, 2010.  A May 2011 administrative decision denied the claim on the basis that the Veteran’s income effective November 22, 2010 exceeded the maximum annual pension limit for a Veteran with no dependents.  In September 2011, the Veteran filed a notice of disagreement to the May 2011 decision.
While the current appeal was pending, the Veteran filed another claim for nonservice-connected pension on March 4, 2013.  A November 2013 administrative decision granted entitlement to nonservice-connected pension, effective March 4, 2013, with payment based on him being a single Veteran with no dependents.
The Board finds that the issue of entitlement to nonservice-connected pension for the period prior to March 4, 2013 remains on appeal, as the Veteran’s appeal of the May 2011 decision (based on his November 2010 claim) remains pending at the present time (following a May 2015 Statement of the Case addressing this issue and the Veteran perfecting his appeal of this issue with a July 2015 VA Form 9).
As outlined in January 2018 and March 2018 written arguments by the Veteran’s attorney, the record contains conflicting evidence regarding the timeframe when he and his spouse (P.J.K.) separated, including whether they were separated at the time when he filed the November 2010 claim for nonservice-connected pension.  Specifically, a July 2008 written statement from P.J.K. noted that she and the Veteran were separated and no longer living together, and that she and her child (J.J.) “will not be with [the Veteran] any longer.”  Thereafter, on an April 2009 VA Form 21-527 (Income-Net Worth and Employment Statement), the Veteran reported that he was married to P.J.K. and living with her and J.J.  Subsequently, on a December 2010 VA Form 21-0516-1 (Improved Pension Eligibility Verification Report), the Veteran reported that he was married to P.J.K. but was not living with her (or any dependent children), and that their date of separation was September 16, 2010.  In his September 2011 notice of disagreement, the Veteran’s attorney noted the Veteran’s assertion that “he has dependents.”  In November 2017, a VA Form 27-0820 (Report of General Information) documented the Veteran’s statement that he had not divorced P.J.K. but that he had left and gone his separate way around January 2012 and that he no longer had anything to do with her or J.J.
On remand, the Veteran should be asked to provide documentation for the entire period of claim prior to March 4, 2013 showing whether he lived with P.J.K. and/or J.J. (or any other dependents) at any time during that period, for purposes of VA determining his maximum annual pension limit for each year during that period.
The matters are REMANDED for the following actions:
1. Ask the Veteran to provide documentation for the entire period of claim prior to March 4, 2013 showing whether he lived with P.J.K. and/or J.J. (or any other dependents) at any time during that period, for purposes of VA determining his maximum annual pension limit for each year during that period.

2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities during the appeal period, to specifically include all records noted above from Jackson Memorial Hospital and North Shore Medical Center.  Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile.
3. Obtain the Veteran’s VA treatment records for the period from December 2017 to the present, as well as a copy of any medical records from North Shore Medical Center that have been scanned into Vista Imaging.
4. After obtaining all additional records, request a records review and addendum medical opinions regarding the etiology of the Veteran’s heart disease and hypertension from the clinician who completed the July 2017 VA opinion, or another appropriate clinician if that clinician is unavailable.  The claims folder and copies of all pertinent records should be made available to the clinician in conjunction with this request. 
If the reviewing clinician determines that a physical examination is necessary, then such must be scheduled.  
If the file is forwarded to the clinician who completed the July 2017 opinion, then the clinician is asked to provide the following clarification of the opinions provided in July 2017:
A)	For the heart disability opinion, the July 2017 opinion indicates that there was no objective medical evidence that the heart disease incurred in service and no post-military treatment reports showing a connection between the claimed heart condition and military service.  This opinion does not reflect that the Veteran’s competent statements regarding experiencing chest pain since service were considered as the opinion appears to be based solely on the lack of objective medical evidence.  Please provide further rationale explaining the significance or non-significance of the Veteran’s reports of chest pain since service and explain whether consideration of the Veteran’s lay evidence changes the opinion provided in July 2017 as to whether it is at least as likely as not that the Veteran’s heart disability was incurred in or caused by the Veteran’s service.  
B)	For hypertension, please clearly explain whether blood pressure readings in service met the criteria for “pre-hypertension.”  If the blood pressure readings did meet those criteria, then please explain what bearing the pre-hypertension may have on the relationship between the Veteran’s current hypertension and his active duty service.  Please explain whether consideration of this evidence changes the opinion provided in July 2017 as to whether it is at least as likely as not that the Veteran’s hypertension was incurred in or caused by the Veteran’s service.  
If the claims file is forwarded to a clinician other than the clinician who provided an opinion in July 2017, then after reviewing the Veteran’s claims file, including all lay statements and testimony of record, the reviewing clinician should provide the following opinions:

A)	Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current heart disability first manifested during active duty service or was otherwise incurred in or caused by active duty service?  
The reviewing clinician should specifically consider and address the Veteran’s in-service treatment for chest pain as well as his competent testimony reflecting symptoms of chest pain continuously from active duty service to the present day.
B)	Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension was first manifested during service or was otherwise incurred in or caused by active duty service?  
The reviewing clinician should specifically consider and address the medical treatise evidence suggesting that the Veteran’s in-service blood pressure readings meet the criteria for “pre-hypertension.”  If they do meet such criteria, then the clinician must explain what bearing the pre-hypertension may have on the relationship between the Veteran’s current hypertension and his active duty service.
A complete rationale for all opinions must be provided.  If the reviewing clinician cannot provide a requested opinion without resorting to speculation, the reviewing clinician should expressly indicate this and provide a 

supporting rationale as to why an opinion cannot be made without resorting to speculation.

 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. B. Yantz, Counsel

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