Citation Nr: 1318566 Decision Date: 06/06/13 Archive Date: 06/11/13 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 Appellant and his spouse. ATTORNEY FOR THE BOARD April Maddox, 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. The Veteran testified before an Acting Veterans Law Judge at a Travel Board hearing in August 2008. Subsequently, the Veteran was afforded a new Board hearing as the Acting Veterans Law Judge who conducted the August 2008 Travel Board hearing was no longer employed by the Board. See 38 U.S.C.A. § 7107(c); 38 C.F.R. §§ 20.707, 20.717. Subsequently, the Veteran testified before a new Veterans Law Judge at a Board videoconference hearing in December 2011. Transcripts of these proceedings have been associated with the claims file. In February 2010, October 2011 and February 2012, and February 2013, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. Notably, in a January 2012 rating decision the RO continued a 30 percent disability rating for the Veteran's service-connected heart murmur, status post aortic valve replacement; denied service connection for mental disorders claimed as cognitive, anxiety, and depression; diabetes mellitus; a lung condition; and liver cancer; denied special monthly compensation based on aid and attendance/housebound; and denied total disability based on individual unemployability (TDIU). A review of VACOLS (Veterans Appeals Control and Locator System) shows that the Veteran submitted a "notice of disagreement" as to the January 2012 rating decision in January 2012. When a "notice of disagreement" is timely filed, the RO must reexamine the claim and determine if additional review or development is warranted. If no preliminary action is required, or when it is completed, the RO must prepare a statement of the case pursuant to 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought on appeal or the notice of disagreement is withdrawn by the appellant or his or her representative. 38 C.F.R. § 19.26. This matter is referred to the RO for appropriate consideration. 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, some of the evidence in the claims file supports a diagnosis of myasthenia gravis and some of the evidence in the claims file does not support 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 found 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. In February 2013 the Board remanded this claim again so that the March 2012 VA examiner could render an addendum opinion which specifically discussed the previous diagnoses of record. In response to this request, the March 2012 VA examiner reviewed the claims file, to include the March 2012 examination report, again in February 2013. The examiner again opined that the Veteran did not have a current diagnosis of myasthenia gravis. The Veteran had a negative physical examination for myasthenia gravis. His Tensilon test for myasthenia gravis was normal. His acetylcholine receptor antibody test for myasthenia gravis was negative. His electromyogram with repetitive stimulation for myasthenia gravis did not reveal any myasthenia gravis. The examiner opined that the Veteran's heart disease did not cause myasthenia gravis. In a May 2013 Informal Hearing Presentation the Veteran's representative wrote that the most recent "chart review" done by the March 2012 VA examiner did not comply with remand instructions. The Board specifically stated that if myasthenia gravis was not diagnosed, the examiner was to "please discuss the previous diagnoses of record." This was not accomplished. The Veteran's representative wrote that the case had already been remanded four times and it was doubtful that the March 2012 VA examiner was going to fully comply with the remand instructions. Given this, the Veteran's representative requested an outside medical opinion to try and resolve the issue. Initially, a review of the Veteran's claims file shows that he is in receipt of Social Security disability benefits. Specifically, a June 2004 for the Social Security Administration shows that the Veteran has been in receipt of disability benefits since May 2004. However, neither a decision nor medical records underlying such an award are on file. While Social Security Administration determinations are not binding on the Board, such records are potentially important to the Veteran's current claim before the Board, in that they may provide a basis for entitlement to service connection. On remand, the complete medical and administrative records related to any application for Social Security Administration disability benefits must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Also, as above, pursuant to the February 2013 Board remand, the March 2012 VA provided an addendum an opinion in this case. Unfortunately, the March 2012 VA examiner did not comply with remand instructions. The Board specifically stated that if myasthenia gravis was not diagnosed, the examiner was to "please discuss the previous diagnoses of record." This was not accomplished. As such, the Board finds that compliance with the February 2013 remand has not been accomplished. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance. Moreover, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). On remand, the RO should arrange for the Veteran to undergo another VA examination, by a VA neurologist other than the March 2012 VA examiner, at a VA medical facility. Specifically, the examiner should opine whether the Veteran has a current diagnosis of myasthenia gravis and, if not, discuss whether the Veteran ever had a diagnosis of myasthenia gravis to include a discussion of the previous diagnoses of record. Prior to arranging to obtaining further medical opinions in this appeal, to ensure that all due process requirements are met, and that the record before each examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. It appears that there may be outstanding VA treatment records not yet associated with the record. A review of the claims file shows that the Veteran consistently sought VA treatment from December 2002 through March 2013 but there are no treatment records dated after March 2013. Hence, the RO should obtain any outstanding VA treatment records since March 2013. 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. Obtain VA treatment records from March 2013 forward and associate them with the Veteran's claims file. 2. Contact the Social Security Administration and obtain any administrative decisions and all medical records used in adjudicating the Veteran's claim for disability benefits. Once obtained, all documents must be permanently associated with the claims file. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims file. 3. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his claimed myasthenia gravis. After securing any necessary authorization from him, obtain all identified records not already contained in the claims file. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After obtaining the above records, schedule the Veteran for a VA neurology 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: * June 2005 neurology consult * September 2005 hospitalization note * October 2005 VA outpatient treatment * March 2006 Chief of Neurology Service at a VA Medical Center opinion * July 2006 VA staff neurologist opinion * 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 A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is not able to provide an opinion, he or she should explain why. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. 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 matter or 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).