Citation Nr: 1204158	
Decision Date: 02/03/12    Archive Date: 02/13/12

DOCKET NO.  99-22 252	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for organic heart disease with proximal atrial fibrillation and mitral valve prolapse.

2. Entitlement to an evaluation in excess of 10 percent for organic heart disease with proximal atrial fibrillation and mitral valve prolapse.
 
3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel

INTRODUCTION

The Veteran served on active duty from January 1981 to January 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  The case was certified to the Board by the Atlanta, Georgia RO.

This matter was previously before the Board in December 2000, March 2005, and April 2006.  In December 2000, the Board remanded the claims for additional development.  In March 2005, the Board denied entitlement to service connection for hypertension and remanded the other claims for further development.

In April 2006, the Board denied entitlement to an increased rating for paroxysmal supraventricular tachycardia and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders.  The Veteran appealed the Board's April 2006 decision to the United States Court of Appeals for Veterans Claims (Court).  In March 2007, the Court granted a joint motion for remand.

The Board remanded the appeal for additional development in July 2007, in part, because the Judge who conducted a September 2000 hearing had retired.  The Veteran was afforded the opportunity to attend a hearing before another Veteran's Law Judge, which he did in November 2007.

In March 2008 and April 2010, the Board remanded the claims for further development.  The case has been returned to the Board for further appellate review.

The issue of entitlement to reimbursement for unauthorized medical expenses 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 issues of entitlement to an increased rating for organic heart disease with proximal atrial fibrillation, mitral valve prolapse; and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In an August 1984 rating decision the Veteran was granted entitlement to service connection for organic heart disease with proximal atrial fibrillation and mitral valve prolapse effective from January 24, 1984.  

2.  While a November 1998 rating decision restyled the disorder as paroxysmal supraventricular tachycardia, there is no evidence that VA ever attempted to properly sever service connection for organic heart disease; hence, by November 1998, the Veteran had been service connected for organic heart disease for more than 10 years.

3.  The original grant in August 1984 was not based on fraud, and the Veteran had the requisite service and character of discharge. 


CONCLUSION OF LAW

The grant of service connection for organic heart disease is protected.  38 U.S.C.A. § 1159 (West 2002 & Supp. 2011); 38 C.F.R. § 3.957 (2011).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA) 

Given the Board's favorable action below any failure to discuss VCAA compliance is harmless.  See Shinseki v. Sanders, ___ U.S. ___, 129 S. Ct. 1696, 173 L.Ed.2d 532 (2009).

II.  Service Connection

The Veteran has claimed entitlement to service connection for hypertensive vascular disease secondary to organic heart disease with proximal atrial fibrillation and mitral valve prolapse.  Significantly, the adjudicative record is confusing as to whether the appellant is first service connected for organic heart disease-indeed, over time the record has not reflected the fact that the appellant is in fact service connected for organic heart disease-the Board finds that it must first clarify that fact.

In this regard, when service connection has been in force for ten or more years it shall not be severed except upon a showing that the original grant of service connection was based on fraud, or if it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge.  The ten-year period is computed from the effective date establishing service connection to the effective date for the severance of service connection, after compliance with the procedural safeguards set forth 38 C.F.R. § 3.105(d) (2011).  38 U.S.C.A. § 1159; 38 C.F.R. § 3.957; Bruce v. West, 11 Vet. App. 405, 409 (1998).

In Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011), the Federal Circuit held that "service connection for a 'disability' is not severed simply because the situs of a disability-or the Diagnostic Code associated with it-is corrected to more accurately determine the benefit to which a veteran may be entitled for a service connected disability."

The Veteran was granted entitlement to service connection for organic heart disease with paroxysmal atrial fibrillation and mitral valve prolapse in an August 1984 rating decision, effective January 24, 1984.  In a November 1998 rating decision the Veteran's disability was restyled as paroxysmal supraventricular tachycardia only.  No reference was made to the fact that in 1984, service connection had been granted for organic heart disease.  

There is no evidence that VA between 1984 and 1998 ever attempted to sever service connection for organic heart disease.  Hence, by 1998, the Veteran had been service connected for organic heart disease for more than 10 years.  Given that there is no evidence that service connection was granted based on fraud, and give that the Veteran had the requisite service or character of discharge, the grant of service connection for his organic heart disease is protected.  38 U.S.C.A. § 1159.


ORDER

The 1984 grant of entitlement to service connection for organic heart disease is protected.


REMAND

It is clear from the Veteran's pleadings that he believes that all of his heart problems, to include hypertensive vascular disease, are related to service, and that these disorders in turn have led to him being unable to secure and maintain substantially gainful employment.  Unfortunately, while VA has made efforts to develop this case, because the record did not clearly reflect the fact that the appellant is service connected for organic heart disease it is possible that examiners in rendering prior opinions may have been misinformed.  Moreover, case law precludes the Board from offering its own medical analysis, Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Hence, further development is required. 

Therefore, this case is REMANDED for the following action:

1.  The AMC/RO should take appropriate action to secure any pertinent records addressing the current nature and extent of any cardiovascular disorder affecting the Veteran which have not been previously secured for inclusion in the claims file.  Duplicate records should NOT be added to the claims file.  All attempts to secure this evidence must be documented in the claims file.  If the AMC/RO cannot locate any identified records, the AMC/RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The AMC/RO must then: (a) notify the Veteran and his representative of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The Veteran must then be given an opportunity to respond.

2.  Thereafter, the Veteran must be scheduled for an examination by a board certified cardiologist who has not previously examined him.  The claims files must be made available to and reviewed by the cardiologist.  Following the examination of the Veteran and a review of the files the cardiologist must address the following questions:

* What is the current nature and extent of the Veteran's organic heart disease with proximal atrial fibrillation and mitral valve prolapse?  

* In this case, how does the appellant's hypertensive heart disease differ from his organic heart disease with proximal atrial fibrillation and mitral valve prolapse?  Please be specific in differentiating the pathology caused by each disorder.

* Are there any other cardiovascular disorders that currently cause disability for the appellant?  How do they differ from the appellant's organic heart disease with proximal atrial fibrillation and mitral valve prolapse?  Please be specific in differentiating the pathology caused by each disorder.

* Is it at least as likely as not that the appellant's organic heart disease with proximal atrial fibrillation and mitral valve prolapse caused or permanently aggravates the Veteran's hypertensive vascular disease or any other currently diagnosed heart disorder?

* If so, is it at least as likely as not that the combination of organic heart disease with proximal atrial fibrillation and mitral valve prolapse and hypertensive vascular disease preclude the Veteran from performing substantially gainful employment?

* Is it at least as likely as not that the Veteran's organic heart disease with proximal atrial fibrillation and mitral valve prolapsed alone preclude the Veteran from performing substantially gainful employment?

3.  Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC should readjudicate the remanded issues.  All applicable laws and regulations should be considered.  If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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. 2011).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs