06-31 773

Citation Nr: 1045638
Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 06-31 773 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office
in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for a heart disability, to
include as being due to or aggravated by the appellant's service-
connected psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The Veteran served in the United States Army from June 1946 to
February 1947.
This matter comes before the Board of Veterans' Appeals (Board)
from a March 2006 rating decision of the Department of Veterans
Affairs (VA), Regional Office (RO), in Augusta, Maine. That
rating decision denied the Veteran's attempts to reopen his
claims for service connection for a heart disability and a
psychiatric disorder because new and material evidence had not
been submitted. A January 2008 rating decision from the RO in
St. Petersburg, Florida, denied service connection for PTSD.
Upon reviewing the Veteran's claim, the Board, in a
Decision/Remand, of February 2009, reoepened the Veteran's claims
involving the heart and a psychiatric disorder (not to include
PTSD). Those two issues were then returned to the RO via the
Appeals Management Center (AMC), in Washington, DC, for
additional development. The remaining issue, that involving
entitlement to service connection for PTSD, was denied by the
Board.
The record reflects that after further information was obtained
by the RO/AMC, it granted service connection for a psychiatric
disorder. The remaining issue, that involving a heart
disability, was subsequently returned to the Board for review.
The appeal is once again REMANDED to the RO via the AMC. VA will
notify the Veteran if further action is required.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. §
7107(a)(2) (West 2002).
REMAND
The Veteran has come before the VA asking that service connection
be granted for a heart disorder. To support his claim, the
Veteran has provided statements that indicate that while he was
on active duty, he experienced shortness of breath and chest
pains. Shortly after he was discharged from the service, he
sought VA compensation benefits for a heart disability. Service
connection was denied because, at that time, the Veteran was not
exhibiting symptoms and manifestations suggestive of a heart
disability.
The Veteran has since proffered an opinion by a VA doctor that
was written in August 2005. In that opinion, the VA doctor
stated that after the Veteran was discharged from service, the
Veteran was diagnosed as suffering from hypertension. He was
eventually given medications for control of the hypertension.
Then in 1998, he suffered a cardiac incident which led to
coronary artery bypass graft surgery. The doctor noted that the
coronary artery disease preceded a 1997 stroke. Upon completion
of the exam, the VA doctor diagnosed the Veteran as suffering
from essential hypertension, coronary artery disease, severe left
ventricular dysfunction, and status post coronary artery bypass
graft of five vessels. The VA doctor further wrote:
. . . The heart condition is at least
as likely as not service related. The
veteran has cardiac symptoms which started
in the service but he doesn't have the
diagnosis of cardiac disease, but these
symptoms were most likely due to cardiac
disease.
After the Veteran's claim had been denied by his local regional
office, he appealed the denial to the Board. The Board then
concluded that additional medical information was needed with
respect to the Veteran's current heart disability. Hence, the
claim was returned and a VA doctor was requested to review the
claim and proffer an etiological opinion concerning the Veteran's
cardiac disorder. Such an opinion was proffered in March 2009.
In that review and opinion, it is noted that the examiner stated
that the Veteran had cardiac symptoms while in service, and
shortly thereafter, and then he did not experience any type of
cardiac condition until December 1998 when he suffered from a
myocardial infarction and cardiac arrest. The examiner reported
that the Veteran had a long history of COPD and cigarette
smoking, but no mention was made of his hypertension. The
examiner further wrote that the Veteran's congestive heart
disease began in December 1998 and that earlier possible
prodromas were not indicative of a diagnosable heart condition.
The examiner ended his review with the following:
. . . We have no documentation of a
continuum of cardiac problems or care
connecting the vague, nonspecific chest
discomfort from 1946 to the massive MI he
suffered in 1998.
If he was starting with coronary heart
disease in1946, he would have had the major
MI much sooner th[an] 1998, since he smoked
very heavily until 1997, the year before
the MI.
. . . it seems less likely as not that
his 1998 coronary heart disease was caused
by or related to his vague in service chest
discomfort 52 years before his massive MI
in 1998.
In an August 2010 rating decision, the RO granted service
connection for anxiety disorder. In light of the reports in
service of symptoms that were apparently psychiatric in nature,
the issue of secondary service connection pursuant to 38 C.F.R.
§ 3.310 is raised. As anxiety neurosis was not service-connected
at the time of the last examination, another VA examination is
warranted. In addition, notice pursuant to the Veterans Claims
Assistance Act should be provided concerning secondary service
connection and the RO should consider 38 C.F.R. § 3.310 in the
supplemental statement of the case.
Therefore, to ensure that VA has met its duty to assist the
claimant in developing the facts pertinent to the claims and to
ensure full compliance with the pronouncements of the United
States Court of Appeals for Veterans Claims (Court), and due
process requirements, the case is REMANDED to the RO/AMC for the
following development:
1. Notify the Veteran of the information
and evidence needed to substantiate a claim
for secondary service connection under 38
C.F.R. § 3.310.
2. The RO/AMC should arrange for a
cardiology examination of the Veteran. If
possible, the examination should be
performed by a medical doctor to assess
whether the Veteran now suffers from a
heart disability and the etiology of said
condition. The claims folder and a copy of
this REMAND should be made available to the
examiner for review in conjunction with the
examination. The examiner is asked to
indicate that he or she has reviewed the
claims folder.
After reviewing the file and examining the
Veteran, the examiner should render an
opinion as to whether it is at least as
likely as not that any found cardiac
condition is related to or caused by his
military service. If not, is any found
cardiac condition caused by his service-
connected psychiatric disorder. If not, is
it aggravated (i.e., permanently worsened
beyond the natural progression) by the
service-connected psychiatric disorder. If
would be helpful if the examiner would use
the following language, as may be
appropriate: "more likely than not"
(meaning likelihood greater than 50%), "at
least as likely as not" (meaning likelihood
of at least 50%), or "less likely than
not" or "unlikely" (meaning that there is
a less than 50% likelihood).
The term "at least as likely as not" does
not mean "within the realm of medical
possibility." Rather, it means that the
weight of medical evidence both for and
against a conclusion is so evenly divided
that it is as medically sound to find in
favor of that conclusion as it is to find
against it.
The examiner must provide a comprehensive
report including rationales for all
opinions and conclusions. The examiner
should consider the symptoms the Veteran
experienced while he was on active duty and
any reports by the Veteran of continuing
symptoms following his discharge from
service. If further testing or examination
by specialists is required to evaluate the
claimed disorder, such testing or
examination is to be done before completion
of the examination report.
3. Following completion of the foregoing,
the RO/AMC must review the claims folder
and ensure that all of the foregoing
development actions have been conducted and
completed in full. If any development is
incomplete, appropriate corrective action
is to be implemented. Specific attention
is directed to the examination report. If
the examination report does not include
fully detailed descriptions of pathology
and all test reports, special studies or
adequate responses to the specific opinions
requested, the reports must be returned for
corrective action. 38 C.F.R. § 4.2 (2010);
see also Stegall v. West, 11 Vet. App. 268(1998).
4. Thereafter, the RO/AMC should
readjudicate the issue noted on the title
page of this decision. If the benefit
sought on appeal remains denied, the
Veteran and his accredited representative
should be provided an SSOC regarding the
issue now on appeal. The SSOC must contain
notice of all relevant actions taken on the
claims for benefits, to include a summary
of the evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. The criteria
in 38 C.F.R. § 3.310 should be set
forth and considered. An appropriate
period of time should be allowed for
response. Thereafter, the case should be
returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of this
case. The Veteran need take no action unless otherwise notified.
The purpose of the examination requested in this remand is to
obtain information or evidence (or both) which may be dispositive
of the appeal. Therefore, the Veteran is hereby placed on notice
that pursuant to 38 C.F.R. § 3.655 (2010) failure to cooperate by
attending the requested VA examination may result in an adverse
determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569
(1991).
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). Please note,
this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited
handling is requested. 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.A. §§ 5109B, 7112 (West Supp.
2010).
_________________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).