Citation Nr: 1131985 Decision Date: 08/30/11 Archive Date: 09/07/11 DOCKET NO. 09-08 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether vacatur of the decision of the Board of Veterans' Appeals issued on December 25, 2010 is warranted. 2. Entitlement to a disability rating in excess of 10 percent for service-connected atrial fibrillation, with mild vitral prolapse and regurgitation. ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above. On his February 2009 substantive appeal, the Veteran indicated that he wanted a Board hearing at his local RO; however, on an attached statement, the Veteran also indicated that he wanted a local hearing with a Decision Review Office (DRO). Subsequently, however, the Veteran submitted a statement withdrawing his request for a DRO hearing and he also submitted a statement stating that he no longer wanted a Board hearing. See statements submitted by the Veteran in April 2009 and March 2010. The Board, then, finds that all due process has been satisfied with respect to the Veteran's right to a hearing. The issues of entitlement to service connection for hammertoes and entitlement to an increased rating for service-connected left hip disability have been raised by the record, but (it appears) have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See June 2010 statement from the Veteran. Therefore, the Board does not have jurisdiction over those issues, and they are referred to the AOJ for appropriate action. Regarding the issue of entitlement to a disability rating in excess of 10 percent for service-connected atrial fibrillation, with mild vitral prolapse and regurgitation, 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. FINDINGS OF FACT 1. On October 25, 2010, the Board issued a decision adjudicating the issue of entitlement to a disability rating in excess of 10 percent for service-connected atrial fibrillation, with mild vitral prolapse and regurgitation. 2. On November 26, 2010, the Board discovered that evidence relevant to the Veteran's increased rating claim had not been obtained or associated with the claims file at the time the October 2010 decision was issued. CONCLUSION OF LAW The October 2010 Board decision addressing the issue of entitlement to a disability rating in excess of 10 percent for service-connected atrial fibrillation, with mild vitral prolapse and regurgitation is vacated. 38 U.S.C.A. § 7104(a)(West 2002); 38 C.F.R. § 20.904 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a)(West 2002); 38 C.F.R. § 20.904 (2010). In June 2010, the Veteran submitted a statement wherein he reported that he had been in atrial fibrillation and supraventricular tachycardia for the past ten days and that he had been in the hospital at the Medical University of South Carolina (MUSC) for the past two days. He stated that he believed the medical records documenting the foregoing would warrant an increase in his service-connected atrial fibrillation disability. At the time of the October 2010 Board decision, the evidentiary record contained medical records from MUSC dated from June 2008 to March 2009, and the Board issued its decision based on that evidence and the other evidence included in the record. However, the Veteran's June 2010 statement indicates that there is outstanding medical evidence from MUSC, dated in June 2010, which is relevant to his increased rating claim and which is not associated with the claims file. It appeared that the Board had all pertinent records in 2010, however, in November 2010 the Veteran indicated that not all pertinent records had been received by the Board. To ensure that all due process has been afforded to the Veteran in adjudicating his claim of an increased rating for service-connected atrial fibrillation, the Board finds that the October 2010 Board decision must be vacated in order for additional evidentiary development to be conducted. ORDER The October 2010 Board decision addressing the issue of entitlement to a disability rating in excess of 10 percent for service-connected atrial fibrillation, with mild vitral prolapse and regurgitation is vacated. REMAND As discussed above, in a June 2010 statement, the Veteran reported that he recently received treatment for his service-connected atrial fibrillation disability. He specifically reported that he had been in atrial fibrillation and supraventricular tachycardia for the past ten days and that he had been in the hospital at the Medical University of South Carolina (MUSC) for the past two days. He stated that he believed the medical records documenting the foregoing would warrant an increase in his service-connected atrial fibrillation disability. The evidentiary record only contains medical evidence from MUSC dated from June 2008 to March 2009, and there is no indication that any attempt has been made to obtain the treatment records from MUSC which document the Veteran's recent treatment. VA's duty to assist the Veteran includes obtaining relevant records from private medical care providers identified by the Veteran. See 38 C.F.R. § 3.159(c)(1) (2010). Therefore, because there are outstanding records from MUSC which may contain pertinent information to this claim, VA is obligated to obtain them. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). However, in this regard, the Veteran himself is asked to provide these records (and indicate to the VA that the RO has all the medical records), in order to expedite his claim. Accordingly, the case is REMANDED for the following action: 1. Contact the Medical University of South Carolina and obtain the Veteran's treatment records dated from March 2009 to the present. If such records are not available or the search yields negative results otherwise, the record should so indicate with an appropriate explanation. 2. After the development above has been completed, reexamine the claims file to determine whether any supplementary development is warranted including, but not limited to, obtaining a new VA examination. 3. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed, and he has the right to submit additional evidence and argument on the 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. 2010). _________________________________________________ JOHN J. CROWLEY 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).