Citation Nr: 0706975 Decision Date: 03/09/07 Archive Date: 03/20/07 DOCKET NO. 04-24 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an increased initial evaluation for myasthenia gravis (to include claimed cramps in feet and hands, chest pain, residuals of thoracotomy, and eye conditions, including ptosis and residuals of a chalazion), currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD H. Seesel, Associate Counsel INTRODUCTION The veteran had active service from February 1983 until May 2003. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2003 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The appeal initially included claims for service connection for a left leg condition and a left hip condition. Although the veteran submitted a notice of disagreement as to the rating decision and a Statement of the Case was issued in February 2004, the veteran did not perfect his appeal by the filing of a timely substantive appeal. As such these issues are not presently before the Board. 38 U.S.C.A. § 7105(a); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) [pursuant to 38 U.S.C. § 7105, a Notice of Disagreement initiates appellate review in the VA administrative adjudication process; and the request for appellate review is completed by the claimant's filing of a substantive appeal (VA Form 1-9 Appeal) after an SOC is issued by VA]. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A preliminary review of the record discloses that further development is necessary. Specifically, the Board finds another VA examination is necessary to decide the claim. Service connection for myasthenia gravis was granted in a July 2003 rating decision. At that time, the veteran's myasthenia gravis was assigned a 30 percent evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8025. The veteran contends the current evaluation does not accurately reflect the severity of his disability. Under Diagnostic Code 8025, a diagnosis of myasthenia gravis with ascertainable residuals warrants the assignment of a minimal rating of 30 percent. 38 C.F.R. § 4.124a also provides that consideration should be afforded to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, and visceral manifestations. A note under Diagnostic Code 8025 further provides that ratings in excess of the prescribed minimum ratings may be assigned and the diagnostic codes utilized as bases of evaluation should be cited in addition to the codes identifying the diagnoses. Id. at Note 1. In other words, a higher rating may be assigned based upon the combined evaluations of the residual disorders. Although the veteran underwent VA examinations in May 2003 and June 2003 with a view towards ascertaining whether he had myasthenia gravis and other claimed conditions, the examination report is not sufficient to ascertain the severity of the disorder, with specific inquiry as to the rating criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8025, as established by the General Rating Formula for Mental Disorders. Beverly v. Brown, 9 Vet. App. 402, 406 (1996) (Holding that VA rating examinations must contain findings which address the specific diagnostic criteria.); see Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992) (Holding that VA must adhere to specific factors as enumerated in the rating criteria when evaluating schedular disability rating claims.). Furthermore, the VA examinations failed to address all of the possible residuals of myasthenia gravis and provide detailed findings from which these residuals could be separately evaluated under the appropriate diagnostic codes. Therefore, the medical evidence of record is insufficient for the Board to render a decision on the nature, extent and severity of the veteran's myasthenia gravis. These considerations require 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). In the present case, the veteran has reported treatment at Walter Reed Army Medical Center; however, a complete set of records are not associated with the claims file. These records are relevant and should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the veteran and ask him to specify all medical care providers who treated him for myasthenia gravis and any associated residuals. The RO/AMC should then obtain and associate with the claims file any records identified by the veteran that are not already associated with the claims file. The veteran should be specifically asked to complete an authorization for release of medical records for the treatment he received from Walter Reed Army Medical Center. 2. The veteran should be afforded a comprehensive neurological VA examination. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and following this review and the examination express an opinion as to the following: a) Whether the veteran's claimed cramps in feet and hands, chest pain, residuals of thoracotomy, and eye conditions, including ptosis and residuals of a chalazion are associated with the diagnosed myasthenia gravis? b) Whether the veteran's myasthenia gravis is manifested by any other residual disorders, including but not limited to, headaches, dizziness, fatigability, psychotic manifestations, loss of use or partial loss of use of an extremity, speech disturbances, impairment of vision, disturbances of gait, tremors, or visceral manifestations? c) For any residual disorder associated with the myasthenia gravis, the examiner should express an opinion as to the severity of that disorder. In evaluating the associated disorders, the examiner should refer to the appropriate diagnostic codes for each disability. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. Copies of all pertinent records in the veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. When the development requested has been completed, the claim should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). This claim must be afforded expeditious treatment. 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. 2005). _________________________________________________ VITO A. CLEMENTI 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) (2006).