Citation Nr: 1310102 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-12 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased evaluation for Grave's disease with hypertension and left ventricular hypertrophy, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active military duty from May 1971 to March 1994. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO increased the rating assigned for Grave's disease with hypertension and left ventricular hypertrophy from 10 percent disabling to 30 percent disabling, effective August 31, 2007. 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 The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran was afforded a VA examination in April 2008 to assess the severity of his service-connected Grave's disease with hypertension and left ventricular hypertrophy. During the VA examination, the examiner noted the Veteran's complaints of having increased episodes of blood pressure and resting during these times, however, the examiner did not comment as to whether or not fatigability and or emotional instability were present. In his September 2008 Notice of Disagreement, the Veteran reported that he should have been awarded a 60 percent disability based on the VA medical examination and his VA treatment records. In a March 2013 Informal Hearing Presentation, the Veteran's representative indicated that the Veteran's service-connected condition is more severe than has been reflected in the rating decision and that VA examination was no longer contemporaneous as it dated back to 2008. The Board finds that a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board further notes that in January 2013, treatment records from the San Francisco VA Medical Center dated from September 2009 to December 2012 have been associated with the Veteran's Virtual claims file. This evidence was not accompanied by a waiver of consideration by the AOJ. The Board observes that any pertinent evidence submitted by the appellant or his/her representative must be referred the AOJ, unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304 (c) (2012); see Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (holding that appellants are denied "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration, and without having to obtain the appellant's waiver). Accordingly, the case is REMANDED for the following action: 1. Obtain any additional outpatient treatment records dated from December 2012 to present from the San Francisco VA Medical Center reflecting treatment for Grave's disease and associate them with the virtual or paper claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of the Veteran's service-connected Grave's disease with hypertension and left ventricular hypertrophy. The claims file, including this remand and any relevant records in Virtual VA must be made available to and be reviewed by the examiner. After reviewing the claims file and interviewing and examining the Veteran, the examiner must provide current findings as to the severity of the disability, to include any effects on employment. The examination findings must specifically include a determination as to whether the Veteran experiences any of the following due to Grave's disease with hypertension and left ventricular hypertrophy: including tachycardia and/or increased pulse/blood pressure; tremor; emotional instability; fatigability; thyroid enlargement; eye involvement; muscular weakness; loss of weight; gastrointestinal symptoms; and/or involvement of the sympathetic nervous system. All clinical findings must be reported in detail and correlated to a specific diagnosis and the report prepared must be typed. 3. After undertaking any other development deemed appropriate, the AOJ should review the record, to include all evidence in the both physical and Virtual claims file that has not previously been addressed in the most recent supplemental statements of the case (SSOCs) of record, and readjudicate the issue of entitlement to an increased rating for Grave's disease with hypertension and left ventricular hypertrophy. If any benefit sought is not granted, the Veteran and his representative should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ THOMAS J. DANNAHER 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).