Citation Nr: 1320526 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-42 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a rating in excess of 30 percent for cardiomyopathy. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 2003 to May 2005. This matter is on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing is of record. 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 on his part. REMAND As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the Board determines that additional development is necessary before this claim may be adjudicated. Specifically, at his hearing before the Board in July 2012, the Veteran indicated that he had recently received treatment for his service-connected cardiomyopathy, and the record was held open in order for him to submit this evidence. In August 2012, he submitted a number of new private treatment records, as well as some VA treatment records, all of which were generated since the most recent statement of the case adjudicating the issue on appeal. The Board notes that a veteran has the right to have all relevant evidence first reviewed by the RO prior to Board adjudication. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Here, at his hearing before the Board, the Veteran was specifically informed that the submission of new evidence would likely result in a remand, although this could be avoided if he submitted a statement waiving his right to initial RO review. While he could have waived this right on the record at his hearing, he chose not to do so. Moreover, the submitted evidence was not accompanied by a written waiver. As a consequence, the Board must presume that he has not waived his right to RO review, and the claim must be remanded to fulfill this requirement. Additionally, the fact that the Veteran submitted VA treatment records that were generated since the most recent statement of the case raises the likelihood that there are other relevant VA treatment records that remain outstanding. It should be emphasized that records generated by VA facilities which impact the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, the RO should also obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following action: 1. Acquire any treatment records that may be available from the VA Health Care System of Central Arkansas, or from any other VA Medical Center, for the period since February 2012. If the Veteran has received any private treatment related to his cardiomyopathy, and such records are not already associated with the claims folder, they should be acquired after obtaining the Veteran's authorization. The attempts to obtain these records should be specifically documented in the claims file. If the Veteran fails to provide proper authorization or the records are unavailable, this should also be specifically noted. 2. After this development is completed, as well as any other development the RO deems necessary, readjudicate the issue of entitlement to an increased rating for the Veteran's cardiomyopathy. If the benefit sought on appeal remains denied, the Veteran should be furnished an appropriate supplemental statement of the case and provided opportunity to respond. Then, return the case to the Board for further appellate consideration, as appropriate. 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). _________________________________________________ BARBARA B. COPELAND 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).