Citation Nr: 1122007 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 10-18 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased disability rating for service-connected rheumatic heart disease with history of rheumatic fever, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In this rating decision, the RO continued the 30 percent rating then, and now, in effect for the service-connected connected rheumatic heart disease with history of rheumatic fever. 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 Reason for Remand: To afford the Veteran a VA examination, and to obtain VA outpatient medical records. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim, and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Veteran was afforded a QTC examination in July 2009 in connection with his claim for an increased rating for his service-connected rheumatic heart disease. Although the Board is not required to assist claimants by remanding a claim for another examination solely because of the passage of time since an otherwise adequate examination report was prepared unless the claimant asserts that the disability in question has undergone an increase in severity since the time of the examination, the Board notes that, in this case, by the time the development is done to attempt to obtain additional evidence, the July 2009 examination indeed may have become too old for the Board to address the "current" degree of disability of the rheumatic heart disease, should this case be returned from the Board on appeal after remand. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Moreover, depending on the nature of any additional medical evidence obtained on remand, another examination may be required by an examiner who will review that additional evidence. In some instances, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer, Caffrey. In a letter received in February 2011, the Veteran asserted that his service-connected disorder had become "worse" over the last three years. In light of the factors noted above, the Board concludes that, in this case, an additional VA examination is needed to render a decision on the claim. 38 C.F.R. § 3.159(c)(4). Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. The Board also observes that as part of a June 2009 VA Form 21-4138, the Veteran informed VA that he had been admitted into a VA hospital on June 8, 2009, for a period of two days. While VA medical records dated in June 2009 are of record, including one which notes that the Veteran was admitted for chest pain in "6/2009," neither an admission report nor a discharge summary pertaining to this admission is of record. Also, as part of the above-referenced February 2011 letter to VA, the Veteran noted that he had been admitted into the VA medical Center (VAMC) in Muskogee, Oklahoma on January 10, 2011. The most recent VA medical records on file, including outpatient records, are dated in February 2010. It is important to note that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). An effort should be made to obtain and associate with the Veteran's claims file the cited VA records of hospitalization, from 2009 and 2011. 38 U.S.C. § 5103A (West 2002). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send a revised notice letter regarding the Veteran's claim for an increased disability rating for rheumatic heart disease with history of rheumatic fever. In particular, the notice letter should describe the diagnostic criteria necessary to establish a higher disability rating for rheumatic heart disease. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 2. The RO/AMC should obtain and associate with the claims file all outstanding VA medical records, including hospitalization and outpatient medical records. As noted, the most recent VA outpatient treatment records are dated in February 2010. Significantly, VA hospital admission, inpatient, and discharge records should be sought for admissions beginning June 8, 2009, and January 10, 2011. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 3. Once the records requested above have been obtained, the RO/AMC should schedule the Veteran for a VA cardiovascular examination for the purpose of ascertaining the current severity of his service-connected rheumatic heart disease. The claims folder should be made available to the examiner for review in connection with the examination. All indicated special tests and studies should be accomplished, including (if deemed medically appropriate) a laboratory determination of METs by exercise testing, an electrocardiogram, echocardiogram, and/or X-ray study. With regard to METs testing, the examiner should document the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops. If a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. The examiner must also discuss, if applicable, whether the Veteran's METs level is further impaired by a nonservice-connected disability or disabilities, and if possible, the degree to which such disability results in his current METs level. The examiner is requested to provide an estimated METs level due to the Veteran's rheumatic fever alone. The medical basis for any opinion expressed should be noted for the record. The examiner is requested to provide a rationale for any opinion provided, preferably with citation to the clinical record. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran is hereby notified that it is his responsibility to report for a scheduled VA examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the RO/AMC must review the claims folder and ensure that the foregoing development actions, as well as any other indicated development, have been conducted and completed in full. If the response is deficient in any manner, the RO/AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 6. After conducting any additional development deemed necessary, the RO/AMC should readjudicate the appealed issue in light of all the evidence of record, to include all evidence associated with the claims file after the issuance of the March 2010 statement of the case (SOC). If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental SOC that includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond thereto. The purpose of this REMAND is to accomplish additional development and adjudication; it is not the Board's intent to imply whether the requested action should be granted or denied. The Veteran need not take any action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ KATHLEEN K. GALLGHER 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).