Citation Nr: 1337996 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-15 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating in excess of 10 percent for supraventricular tachycardia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from July 2000 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2011, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. At the time of the hearing, the Veteran submitted additional evidence, including a duplicate VA treatment record, accompanied by a signed waiver of initial RO consideration of this newly-submitted evidence. Therefore, the Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. §§ 20.800; 20.1304(c) (2012). The issue of entitlement to service connection for degenerative mitral valve disease, to include as secondary to service-connected supraventricular tachycardia, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 on his part. REMAND Unfortunately, a remand is required for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). During his Board hearing, the Veteran testified that he experienced four or more tachycardia episodes per month. See hearing transcript at p. 13. The rating criteria found at 38 C.F.R. § 4.104, Diagnostic Code 7010 (for rating supraventricular arrhythmias) details that permanent atrial fibrillation or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by electrocardiogram (ECG) or Holter monitor warrants a 10 percent disability rating. Paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor, warrants a 30 percent disability rating. The Veteran is currently rated at 10 percent. The Board notes that the March 2009 VA examination contains no findings on whether the Veteran's reported frequency of atrial fibrillation or tachycardia episodes per year has been verified by ECG or Holter monitor and was conducted more than four and a half years ago. Indeed, it is not clear from the report of the March 2009 VA examination whether the fee-basis examiner had access to the claims file. Therefore, the Board must consider the March 2009 VA examination inadequate for this adjudication. When an examination report is inadequate, the Board should remand the case for further development. Bowling v. Principi, 15 Vet. App. 1, 12 (2001). See, e.g., 38 C.F.R. § 4.1 ("It is . . . essential both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history."). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (noting that "fulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one."). VA will obtain a new medical examination where, as here, the last medical examination may be too remote in time to portray the current nature, extent, and severity of the disability on appeal. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Therefore, on remand the RO/AMC should ensure that the Veteran is scheduled for another VA examination. After a thorough review of the claims file, the VA examiner should determine, if possible, whether there is any evidence documenting four or more episodes per year of atrial fibrillation or tachycardia during the period of this appeal, which extends from January 2008 to the present. In particular, the VA examiner is requested to review whether any such episodes were seen when the Veteran wore a monitor from VA on September 2, 2009, September 24, 2009, and October 1, 2009. On remand, the Veteran should be invited to submit any evidence, from private or VA medical records, that shows that during the period of this appeal he had four or more episodes per year of atrial fibrillation or tachycardia. VA also has a duty to obtain all relevant VA and governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). The Board notes that there are no VA treatment records associated with the claims file dated after December 2010. Thus, the Board finds that on remand the RO/AMC shall try to obtain and associate with the claims file copies of any outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and his representative and ask them to submit any evidence documenting four or more episodes per year of atrial fibrillation or tachycardia since January 2008 - one year before the Veteran filed his current claim for increase in January 2009. They should also be asked to specify all private and VA medical care providers who have treated him for coronary issues and whose records are not found within the claims file. After the Veteran has signed the appropriate releases, the RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation from the Oklahoma City VAMC, for the period from December 2010 to the present. VA treatment records should be requested whether or not the Veteran responds to the request for information. The RO/AMC should insure that the complete results of all ECG/Holter monitoring since January 2008 are of record. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected supraventricular tachycardia pursuant to the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7010 (2012) (for rating supraventricular arrhythmias). The claims file must be made available to the VA examiner for review in conjunction with this examination. It is left to the examiner's professional judgment whether the Veteran needs to be monitored by ECG or a Holter monitor to satisfactorily complete this examination. The VA examiner is requested to review the claims file and determine, if possible, whether there is any evidence documenting four or more episodes per year of atrial fibrillation or tachycardia during the period of this appeal, extending from January 2008 to the present. In particular, the VA examiner is requested, if possible, to apply the criteria of the rating schedule to when the Veteran wore a monitor from VA on September 2, 2009, September 24, 2009, and October 1, 2009. A rationale or explanation is requested for all opinions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an estimate on the frequency of episodes of atrial fibrillation or tachycardia. 3. When the development requested has been completed, the issue on appeal should again be reviewed by the RO/AMC on the basis of the additional evidence and readjudicated. If any benefit sought is 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. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant 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. 2012). _________________________________________________ BARBARA B. COPELAND 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) (2012).