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.
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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).