Citation Nr: 1316923 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 12-08 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a disability rating in excess of 10 percent for valvular heart disease, mitral damage, class I. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from December 1950 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Milwaukee, Wisconsin, that denied the above claim. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran most recent underwent a VA heart examination in July 2010, during which he reported to the examiner that he was being treated by his private physician, Dr. M. Hoffman, at Cardiovascular Associates, Wausau, about twice per year. A review of the evidence of record reveals that treatment records from Cardiovascular Associates dated through March 2010 have been associated with the Veteran's claims file. As the record shows that the Veteran receives regular medical care for his disability, and as VA has been put on notice of the existence of such ongoing treatment, it must seek to obtain records of such treatment before proceeding with the appeal. See 38 C.F.R. § 3.159 (2012). In light of the state of the record, the claim must be remanded to associate those records with the Veteran's claims file. Additionally, in the July 2010 VA examination report, the VA examiner concluded that while the Veteran has moderately severe chronic obstructive pulmonary disease and a history of ischemic heart disease with residual heart damage, these were unrelated to the service-connected valvular heart disease, which had not progressed. While the VA examiner commented that the ischemic heart disease was unrelated to the service-connected valvular heart disease, an opinion was not provided as to whether the service-connected valvular heart disease aggravates the ischemic heart disease. Moreover, as it has been almost three years since the most recent VA examination evaluating the service-connected valvular heart disease, the Board finds that contemporaneous examination should be conducted. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his heart disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 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 shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that are dated from August 2011 to the present. All records obtained should be associated with the Veteran's claims file. 2. The RO/AMC shall contact the Veteran to ascertain if he has ongoing private treatment records for his service-connected valvular heart disease with Dr. Hoffman, Cardiovascular Associates, Wausau or any other private medical care provider. If an affirmative response is received, the Veteran shall be requested to forward any such private treatment records to the RO/AMC. In the alternative, the Veteran shall forward an Authorization and Consent to Release Information to the VA (VA Form 21-4142), so that the RO/AMC may obtain and associate with the claims file any identified private treatment records. If a negative response is received from the Veteran or from any identified private medical care provider, the Veteran shall be notified and such must be indicated in the claims file. 3. The RO/AMC shall arrange for the Veteran to undergo a VA heart examination so as to ascertain the precise nature and severity of his valvular heart disease, mitral damage, class I. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. All necessary tests and studies shall be conducted. The examiner is requested to opine as whether it is at least as likely as not that the Veteran's service-connected valvular heart disease aggravates his non-service-connected ischemic heart disease or chronic obstructive pulmonary disease. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner is also requested to state whether the Veteran's valvular heart disease is most closely manifested by: (a) workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required; (b) workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilation on electro-cardiogram, echocardiogram, or X-ray; (c) more than one episode of acute congestive heart failure in the past year; or workload of greater that 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent; or (d) chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's valvular heart disease, if any, on the his employment and activities of daily life. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. A complete rationale should be given for all opinions and conclusions. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 5. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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.A. MARKEY 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).