Citation Nr: 1306746
Decision Date: 02/27/13	Archive Date: 04/10/13

DOCKET NO. 10-16 961	)       DATE 27 FEB 2013

On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE 

Entitlement to service connection for mitral valve prolapse.

REPRESENTATION 

Appellant represented by:  Texas Veterans Commission

WITNESS AT HEARING ON APPEAL 

The Veteran

ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from September 1979 to November 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In December 2010, the Veteran testified in a personal hearing before a Decision Review Officer at the RO. A copy of the hearing transcript is associated with the claims file.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.

REMAND

In September 2012, the Board received additional evidence from the Veteran which was not considered by either the RO or AMC (collectively referred to as the agency of original jurisdiction (AOJ)). Specifically, the Veteran submitted a photocopy of his prescription bottle, a lay statement from July 2012, and a photocopy of an electrocardiogram from September 2010. The Board sent the Veteran a notice letter in December 2012 requesting his response as to whether he wanted to send the case back to the AOJ for review of the additional evidence or whether he wanted waived his right to review of the additional evidence by the AOJ. In his response, dated January 2013, the Veteran requested that the case be remanded to the AOJ for consideration of the additional evidence.

The appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2011) contemplates that all evidence will first be reviewed at the level of the AOJ so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 121

-2-

F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare an SSOC reviewing that evidence. 38 C.F.R. § 19.31(b)(1) (2012). Further, when evidence is incorporated into the claims file prior to the transfer of a case to the Board, an SSOC must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a) (2012). When evidence is received after the transfer of a case to the Board, as is the case here, the Board will determine what action is required with respect to the additional evidence. 38 C.F.R. § 19.37(b) (2012). There is no legal authority for a claimant to waive, or the AOJ to suspend, these requirements. 38 C.F.R. § 20.1304(c) (2012). For these reasons, the Veteran's claim for service connection for mitral valve prolapse must be remanded for appropriate action so that the above-noted evidence is appropriately addressed with an SSOC.

Accordingly, the case is REMANDED for the following action:

Review all evidence added to the claims file since the July 2012 SSOC that pertains to the issue of service connection for mitral valve prolapse, including a photocopy of his prescription bottle, a lay statement from July 2012, and a photocopy of an electrocardiogram from September 2010. After undertaking any additional development which may be necessary, to include obtaining an addendum medical opinion, readjudicate the claim to determine if entitlement to the benefits sought is warranted. If the benefit sought remains denied, the Veteran and his representative should be furnished an SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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).

J. Parker 
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).

- 4 -