Citation Nr: 1323810 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-34 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for costochondritis and chest wall pain, including pericarditis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran had active service from August to November 2003 and from June 2004 to January 2007, including combat service in Iraq, and the Veteran's decorations include the Combat Action Badge. The Veteran also had more than five months of prior unspecified active service and more than eight years of active and inactive service in the Army Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This case was previously before the Board in December 2012, when it was remanded for further development to include a new VA heart examination to evaluate the current severity of this service-connected disability. The examination was accomplished in February 2013, and all other development directed by the Board regarding this claim appears to have been substantially accomplished. As such, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Despite the foregoing, for the reasons stated below, the Board finds that further development is still required regarding the current appellate claim. Accordingly, 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. The Board notes that when this case was previously before it it included the issues of entitlement to service connection for fallopian tube disease and chronic pain syndrome, which were included as part of the December 2012 remand. However, service connection was established for fibromyalgia (claimed as chronic pain syndrome) and fallopian tube condtion with infertility by a May 2013 rating decision, which also established special monthly compensation based on loss of use of fallopian tubes. Nothing in the record available for the Board's review indicates the Veteran has expressed disagreement with either the initial disability rating or effective date thereof for these disabilities. Accordingly, the Board considers these claims to be fully resolved and, thus, outside the scope of its appellate jurisdiction. REMAND As noted in the Introduction, the Veteran was accorded a VA heart examination in February 2013 regarding her service-connected costochondritis and chest wall pain, including pericarditis. The Board observes that certain findings indicate little or no impairment of the heart, to include regular rhythm, normal heart sound, normal peripheral pulses, no peripheral edema, no cardiac hypertrophy, no cardiac dilatation, normal EKG, and normal chest X-ray. The examination also reflects that she was unable to finish exercise stress test, and the interview-based METs test was 1-3 METs. Such a finding warrants a higher rating, in general, for disabilities of the cardiovascular system. See 38 C.F.R. § 4.104. However, the examiner indicated that the METs level limitation was not due solely to the costochondritis but multiple factors, to include the fibromyalgia. The examiner added that it was possible to estimate the percentage that was due to the costochondritis but did not specify what percentage was actually due to the costochondritis. In view of the foregoing, the Board finds that the February 2013 VA examination does not provide sufficient information to accurately evaluate the service-connected costochondritis and chest wall pain, including pericarditis. As such, this examination is not adequate for rating purposes. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is required in order to accord the Veteran an adequate examination of this disability. See 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); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for her service-connected costochondritis and chest wall pain, including pericarditis, since March 2013. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. Afford the Veteran a VA heart examination by an appropriately qualified physician to evaluate the current nature and severity of the service-connected costochondritis and chest wall pain, including pericarditis. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be conducted, to include the appropriate testing to determine the Veteran's METs level. For the METs results, the examiner must indicate what percentage is due to the service-connected costochondritis and chest wall pain, including pericarditis, as opposed to other medical conditions such as the Veteran's fibromyalgia. A complete rationale for any opinion expressed must be provided to include if the examiner cannot provide an opinion without resort to speculation. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Then readjudicate the appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in May 2013, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ STEVEN D. REISS 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).