Citation Nr: 0003359 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 96-44 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a cardiac disorder manifested by palpitations. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant served on active duty in the Army from April 1966 to December 1968, and from September 1970 to September 1976. He subsequently served on active duty as a member of the National Guard from August 1983 to November 1994, when he retired. This case originally came before the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which denied the appellant's claim of entitlement to service connection for a heart condition. The matter was remanded for a Travel Board hearing. The appellant subsequently moved from North Carolina to Alabama; in November 1997, the claim was transferred to the Montgomery, Alabama RO. In October 1999, a hearing was held in Montgomery before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b). During that hearing, the appellant also submitted a written waiver of consideration of additional evidence by the RO. See 38 C.F.R. §§ 19.37, 20.1304. REMAND The VA has a duty to assist the appellant once his claim is found to be well-grounded or where there is notice of evidence that might be pertinent to the claim or evidence is needed to complete the application. See 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69 (1995); Graves v. Brown, 8 Vet. App. 522 (1996). In this case, additional development is indicated in order to complete the application for a claim for benefits. The prohibition against development set forth in Morton v. West, 12 Vet. App. 477 (1999), does not preclude such development. The Board initially notes that the appellant's service medical records do not appear to be complete. The service medical records that are currently in evidence do not include the complete records from the Walter Reed Army Hospital; this treatment apparently includes a cardiac catheterization conducted in May 1991, and Holter monitoring conducted in June 1991. The RO must take the proper steps to obtain these records from Walter Reed. See Robinette v. Brown, 8 Vet. App. 69 (1995) (VA put on notice of potentially pertinent records). These are government records that need to be obtained. The Board also notes that it is unclear whether the appellant may have had an employment, insurance or other physical examination within a year or two after his separation from service. He should be informed of the need to submit such records, and of the RO's potential assistance if he desires. Secondly, the Board notes that the appellant has received medical care after service from various providers, but all the records from these providers have not been obtained. The appellant was apparently treated by a private provider in Monroe, North Carolina in 1995 and 1996; it is not clear that all of the associated records have been added to the claims file. The appellant has also received cardiac-related treatment from the outpatient clinics at the Womack Army Hospital at Ft. Bragg, but the only medical records from those clinics have apparently been supplied by the appellant. Again, it is unknown how complete those records are. The appellant has also received treatment at the Birmingham VAMC; he testified at his October 1999 Travel Board hearing that he was currently receiving treatment for a heart condition at that facility. These records, and those from any other health care provider, need to be obtained and associated with the claims file. Furthermore, the appellant's complete service medical records have not been reviewed by competent medical personnel in order to ascertain whether his current cardiac problem could be related to any in-service signs or symptoms. Such an opinion must be obtained since the duty to assist requires the obtaining of an examination report which includes a medical opinion as to whether a veteran's current disabilities are in any way related to those experienced in service. Witherspoon v. Derwinski, 2 Vet. App. 4 (1991). The medical evidence of record is insufficient for the Board to render a decision on the etiology of the appellant's heart condition. These considerations require the gathering of additional records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Hence, the Board requests further development. Due to these factors, the Board deems the clinical evidence currently on file to be inadequate for adjudicating this claim. In such cases, remand for additional examination is the appropriate remedy. See Littke v. Derwinski, 1 Vet. App. 90 (1990). In the interest of due process, the Board finds that this appeal should again be REMANDED to the RO for the following action: 1. The veteran and his representative are notified that they should provide treatment records for any private treatment he has had, for which records have not been submitted. If they desire the assistance of the RO in completing the application, they should request such assistance. The RO should then ask the appellant to provide names, dates and addresses of physicians and/or medical facilities in order to obtain any of the appellant's medical records not already of record regarding chest pains, pulse rates and any cardiovascular disease in the years subsequent to his separation from service, i.e., 1994 to the present. These records include, but are not limited to, any employment-related medical records, any insurance-related medical records and any private medical records, including those of Dr. Shah in Monroe, North Carolina. After obtaining the appropriate releases from the appellant, the RO should obtain these records and associate them with the claims file. All these records should be associated with the claims file. To the extent records are sought but not obtained, the claims file should reflect the efforts made. The appellant and his representative should be notified of any negative results. 38 C.F.R. § 3.159. 2. The RO should contact the appellant to determine the names, addresses, and dates of treatment the appellant has received as an Army retiree at either military facilities or CHAMPUS facilities, or at VA hospitals or treatment centers for any cardiac disorders, the records of which are not in the claims file. In particular, the RO is to obtain copies of all records from the Walter Reed Army Hospital dated in May and June of 1991; from Womack Army Hospital at Ft. Bragg dated in 1995; and from the VAMC at Birmingham. 3. The RO should then forward the claims file, including all treatment records, Holter monitor readings and EKG readings generated during service or subsequent to service, as well as all records obtained pursuant to the above, for an opinion by a cardiovascular specialist. The reviewer is requested to review the entire claims file, with particular emphasis on the results of all cardiac testing dated between 1991 and 1995, and provide a written opinion as to the etiology and onset of any heart disorder found. The reviewer should discuss all in-service heart-related complaints and findings, and in particular, the EKG findings of "EPRW" and "?ASA", as well as the findings of generalized hypokinesis and an ejection fraction of 41 percent dated in April 1991, post- service findings on EKG of "NSR with PSCs", and the results of any cardiac catheterization. If any cardiovascular disorder currently exists, the reviewer is requested to provide an opinion, with degree of medical probability expressed, as to the approximate date of onset thereof. If the reviewer opines that any cardiac pathology pre-dated service, an opinion as to whether such cardiac pathology was aggravated by service should be rendered, with degree of medical probability expressed. The reviewer is requested to provide an opinion as to the medical probability that any documented cardiovascular disorder is related to symptoms or signs the appellant may have had in service or within one year of service separation. The reviewer should also discuss, with degree of medical probability expressed, whether any signs or symptoms noted in service or within one year of service separation are the first manifestations of said disorder(s), as well as the approximate date of onset thereof. In particular, the reviewer should also offer an opinion as to whether the appellant's documented atypical chest pain with possible arrhythmias was related, directly or by aggravation, to symptoms and/or treatment the appellant had in service or within one year of service separation. If it is determined that examination(s) are needed for making the aforementioned opinion, such examination(s) should be scheduled. The reviewer should identify the information on which s/he based the opinion. The opinion should adequately summarize the relevant history and clinical findings, including all cardiac testing performed since April 1991, and provide a detailed explanation as to all medical conclusions rendered. The opinion should also allocate the appellant's various symptoms and manifestations to the appropriate diagnostic entity. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by the reviewer. 4. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 5. The RO should review the claims file 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 report of the requested opinion. If the report does not contain adequate responses to the specific questions raised, the reports must be returned to the examiners for corrective action. 38 C.F.R. § 4.2. "If the [examination] report does not contain sufficient detail it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." Green v. Derwinski, 1. Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 6. The RO should readjudicate the appellant's claim for service connection under all appropriate legal theories. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this document specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).