Citation Nr: 1305036 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 07-29 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for myasthenia gravis, claimed as secondary to heart murmur, status post aortic valve replacement. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from September 1962 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied, in pertinent part, the Veteran's claim of service connection myasthenia gravis, including as due to a service-connected heart murmur, status-post aortic valve replacement. A videoconference Board hearing was held at the RO in December 2011 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In February 2010, October 2011 and February 2012, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The issues of entitlement to service connection for liver cancer, including as due to a service-connected heart murmur, status-post aortic valve replacement, for diabetes mellitus, and for a lung disability, including as due to a service-connected heart murmur, status-post aortic valve replacement, and entitlement to a total disability rating for individual unemployability due to service-connected disabilities have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these claims and they are referred once again to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claim of service connection for myasthenia gravis, including as due to a service-connected heart murmur, status-post aortic valve replacement, can be adjudicated. The Veteran contends that he incurred myasthenia gravis as a result of aortic valve replacement surgery performed at a VA Medical Center in February 2004. He testified to this effect at his videoconference Board hearing in December 2011. He specifically contends that, because he did not experience myasthenia gravis until after his surgery, the aortic valve replacement caused his myasthenia gravis. As discussed in the February 2012 remand, it is unclear if the Veteran has a diagnosis of myasthenia gravis. VA treatment records dated in 2005-2006 indicate both that he does not have any signs of myasthenia gravis (as seen on neurology consult in June 2005) and that he has been diagnosed as having myasthenia gravis (as seen on hospitalization records dated in September 2005). For example, on VA outpatient treatment in October 2005, he was diagnosed as having mild and atypical myasthenic syndrome. In March 2006, however, the Chief of Neurology Service at a VA Medical Center noted that a work-up for myasthenia gravis had been negative. In July 2006, a different VA staff neurologist stated that the Veteran "carries [a] diagnosis of myasthenia gravis with spells of diplopia and hoarseness associated with 'swimmy' feeling lasting about 1 minute which may occur at any time." Following VA examination in March 2007, the same VA neurologist who had seen the Veteran in July 2006 opined that he did not "feel this Veteran is likely to have myasthenia gravis." A different VA (contract) neurologist diagnosed the Veteran as having myasthenia gravis following another neurology consult in July 2007. Another VA (contract) neurologist stated in December 2007 following neurology consult that the differential diagnoses for the Veteran's reported "spells" included myasthenia gravis. He also stated, "Against myasthenia gravis is the fact that [the Veteran] does not appear to have these spells after activity and they can occur even at rest." Following another neurology consult in January 2008, the same VA (contract) neurologist who had seen the Veteran in July 2007 stated that, "A mild variant of myasthenia gravis may still be possible." Finally, following VA examination in March 2010, the VA examiner opined that there was no objective evidence of myasthenia gravis "per neurological notes in records and review of neurological notes by...staff neurologist." The rationale for the March 2010 VA examiner's opinion is not clear from a review of the record which shows (as discussed above) that the Veteran had been diagnosed as having myasthenia gravis by other VA examiners in the past, including the staff neurologist whose notes were reviewed in March 2010. Then in February 2012 the Board remanded in order for the Veteran to be afforded a VA examination to determine if the Veteran has a current diagnosis and to address the contended etiological relationships between his myasthenia gravis and active service, including as due to a service-connected heart murmur, status-post aortic valve replacement. The VA examiner was directed to give a complete rationale for any opinions expressed. In March 2012 the Veteran was afforded a VA examination and the VA examiner stated that there was no myasthenia gravis at this time and it was his opinion that the Veteran did not have myasthenia gravis; he also stated that it was not caused by the Veteran's heart condition and is not service-connected. In a May 2012 VA claim development note it was stated that the VA called the March 2012 VA examiner and that he would render an addendum opinion regarding his claims file review and the rationale for his medical opinion. While an addendum opinion was rendered in May 2012 it was only noted that he reviewed the Veteran's claims file with his initial evaluation, no rationale for his opinion was given. Thus, the Board finds that the Veteran's claims file should be sent to the March 2012 VA examiner to render an addendum opinion and to discuss the previous diagnoses of record. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records, particularly any records identified by the Veteran where he has been diagnosed as having myasthenia gravis in recent years. 2. The Veteran's claims file should be sent to the March 2012 VA examiner, if he is no longer available then the RO must state that and schedule the Veteran for a new VA examination. The claims file and a copy of THIS remand must be provided to the examiner for review. All appropriate testing should be conducted. The VA examiner must provide an opinion on the following: A) Does the Veteran have a current diagnosis of myasthenia gravis? B) If not, has the Veteran ever had a diagnosis of myasthenia gravis? C) If the Veteran does not have a diagnosis of myasthenia gravis please discuss the previous diagnoses of record. D) If the Veteran does have a current diagnosis was it caused by or aggravated (permanently worsened) by a service-connected heart murmur, status-post aortic valve replacement. In rendering his/her opinion the VA examiner must take into account and discuss any previous diagnoses to include, but not limited to: * VA treatment records dated in 2005-2006 specifically: o June 2005 neurology consult o September 2005 hospitalization note o October 2005 VA outpatient treatment o March 2006 Chief of Neurology Service at a VA Medical Center opinion o July 2006 VA staff neurologist opinion * The March 2007 VA examination * July 2007 VA neurology consult * December 2007 VA contract neurology consult * January 2008 VA contract neurology consult * March 2010 VA examination * March 2012 VA examination The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. If an opinion cannot be given without resorting to mere speculation than the VA examiner must state so and further provide a reason for such conclusion. 3. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). _________________________________________________ MARJORIE A. AUER 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).