210426-155406
210426-155406
| Board of Vet. App. | May 28, 2021Background
- Veteran served in the U.S. Air Force from January 1961 to August 1964 and seeks service connection for residuals of rheumatic fever (claimed complications of paralysis).
- Service treatment records show hospitalization at Womack Army Hospital in October–November 1961 with erythema nodosum, a clinical impression of “rule out acute rheumatic fever,” and an ECG reading of sinus tachycardia.
- The claims file reflects multiple current diagnoses (coronary artery disease, diabetes, epilepsy/seizures, hypertension, renal artery stenosis) and a November 2020 admission to the North Carolina State Veterans Home.
- Procedural posture: Veteran filed a supplemental claim in March 2021; the RO denied in April 2021; Veteran appealed to the Board in April 2021 selecting the Direct Review docket (Board limited to evidence of record at time of the April 2021 decision).
- The Board found pre-decisional duty-to-assist errors by the AOJ (missing service personnel records, failure to obtain State Veterans Home records, and failure to obtain a VA medical examination/opinion) and remanded for development and a specialist examination with detailed nexus opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to obtain Service Personnel Records (SPRs) | SPRs are not associated but may contain relevant evidence for the rheumatic-fever claim | AOJ did not secure complete SPRs prior to decision / no further development documented | Remand ordered to obtain complete SPRs or issue a formal finding of unavailability |
| Duty to obtain non-VA treatment records (NC State Veterans Home) | Records exist (Nov 2020 admission) and were not associated; VA should assist in obtaining private/federal facility records | AOJ did not obtain or document efforts to obtain these records before decision | Remand ordered to obtain those records or notify Veteran and document efforts if unavailable |
| Duty to provide VA medical examination/opinion | Evidence of possible in-service rheumatic fever and current symptoms trigger requirement for a nexus exam/opinion | AOJ failed to obtain a medical opinion before the April 2021 decision (AOJ implicitly treated development as unnecessary) | Remand ordered for an exam by an appropriate clinician addressing diagnosis, nexus ("at least as likely as not" standard), relation to current heart/stroke disorders, lay history, and full rationale |
| Board authority on Direct Review docket to remedy pre-decisional errors | Veteran elected Direct Review but still entitled to Board correction of pre-decisional duty-to-assist errors | AOJ relied on record as of decision; Direct Review limits new evidence but not Board’s duty to identify pre-decisional errors | Board may remand under Direct Review to correct duty-to-assist failures identified in the record |
Key Cases Cited
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (establishes when VA must obtain a medical examination/opinion under the duty to assist)