Citation Nr: 1307044 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-43 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a compensable rating for a hiatal hernia disability. 2. Entitlement to a rating in excess of 10 percent for paroxysmal atrial tachycardia. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from September 1966 to September 1970, and from February 1971 to February 1990. This matter came to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a December 2012 letter and during a December 2012 telephone call to the RO, the appellant indicated that he had undergone surgery for his service-connected low back disability in October 2012 and wished to file a claim for a temporary total convalescence rating. See 38 C.F.R. § 4.30 (2012). The record currently available to the Board, including the appellant's Virtual VA file, contains no indication that the RO has had the opportunity to address this claim in the first instance. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action. Review of Virtual VA currently reveals there are no medical records in that file. 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 Under the Veterans' Claims Assistance Act of 2000 (VCAA), VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes making as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including a VA medical facility. 38 C.F.R. § 3.159(c)(2). VA also has an obligation to make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, such as records from a private physician. Such reasonable efforts will generally consist of an initial request for the records and at least one follow-up request. 38 C.F.R. § 3.159(c)(1). In this case, in a November 2009 statement, the appellant indicated that he had been seen on multiple occasions at the VA Medical Center in Poplar Bluff, Missouri. But for October 2009 VA medical examination reports, clinical records from that facility have not yet been obtained. Additionally, the appellant reports that he receives regular medical care from his private physician, Kenneth D. Phillips, M.D. Dr. Phillips provided a letter in support of the appellant's claim in October 2009. The most recent records from Dr. Phillips currently associated with the record on appeal, however, are dated in September 2007. In view of the appellant's reported treatment and the applicable rating criteria, the RO should undertake the necessary efforts to obtain these VA and private clinical records as they may be relevant to the claims on appeal. 38 C.F.R. § 3.159(c)(1), (2). VA's duty to assist also includes obtaining a medical opinion if one is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Here, the record shows that the appellant underwent VA medical examinations in connection with his increased rating claims in October 2009. The Board notes that the examiner on both occasions indicated that the appellant's claims folder was not available for review in connection with the examinations. Additionally, the Board notes that since the examinations were conducted, the appellant has contacted the RO and requested additional examinations, arguing that the October 2009 examinations were not a true reflection of the severity of his service-connected hiatal hernia and paroxysmal atrial tachycardia. As best the Board can discern from the record on appeal, the appellant was scheduled for additional VA heart and digestive examinations, to be held in November 2012. The appellant, however, apparently canceled the examinations as he was scheduled to undergo back surgery. According to a December 2012 Report of General Information, the appellant was advised via telephone that the examinations would be rescheduled in light of his back surgery. In a December 2012 letter, the appellant again indicated his willingness to report for the examinations. There is some indication that the exams may have been scheduled and not held as it is indicated that the Veteran did not want the exam at the location provided. This needs further clarification as he earlier indicated that he would appear for examinations at this location. The U.S. Court of Appeals for Veterans Claims, (Court) has held that where a Veteran claims that a service-connected disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992). Given the discussion above, the Board finds that more contemporaneous examinations are necessary in order to determine the current severity of the appellant's service-connected hiatal hernia and paroxysmal atrial tachycardia. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). It the Veteran fails to report, or refuses the examination, the method and details of the refusal must be recorded in the claims folder. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary information and authorization from the appellant, the RO/AMC should contact Kenneth D. Phillips, M.D., and request treatment records pertaining to the appellant for the period from September 2007 to the present. 2. The RO/AMC should contact the Poplar Bluff VA Medical Center and obtain any clinical records of treatment pertaining to the appellant for the period from May 2008 to the present. 3. After the above records, if any, have been secured and associated with the record, the appellant should be afforded a VA medical examination for the purposes of identifying the current severity of his service-connected hiatal hernia. The claims folder and access to Virtual VA must be provided to the examiner for review in connection with the examination. If it is determined that no medical records yet exist in Virtual VA, that should be noted for the examiner and review of Virtual VA would not be indicated. After examining the appellant and reviewing the claims folder and Virtual VA as appropriate, the examiner should specifically delineate all symptomatology associated with the appellant's service-connected hiatal hernia disability, including whether it is manifested by epigastric distress, dysphagia, pyrosis, substernal arm or shoulder pain, vomiting, material weight loss, hematemesis, melena, or anemia. The examiner should also be asked to provide an opinion as to whether the appellant's hiatal hernia disability results in considerable or severe impairment of health. A complete rationale for any opinions expressed should be given. 4. The appellant should also be afforded a VA medical examination to determine the nature and severity of his service- connected paroxysmal atrial tachycardia. The claims folder and access to Virtual VA (again, as appropriate,) must be provided to the examiner for review in connection with the examination. Any necessary special studies should be accomplished in connection with the examination. After examining the appellant and reviewing the claims folder and Virtual VA, the examiner should specifically delineate all symptomatology associated with the service-connected paroxysmal atrial tachycardia. The examiner should specifically comment on the severity and frequency of any paroxysmal atrial fibrillation or other supraventricular tachycardia attacks. A complete rationale for any opinions expressed should be given. 5. Thereafter, the RO/AMC must review the claims folders and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The RO must review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If either report is deficient in any manner, the RO must implement corrective procedures at once. 6. After undertaking any additional development deemed necessary, the RO/AMC should readjudicate claim, considering all of the evidence of record. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board, if in order. 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. 2012). _________________________________________________ MICHAEL D. LYON 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).