Citation Nr: 1329014	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  07-19 932	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for the residuals of malaria.

2.  Entitlement to service connection for mitral valve prolapse.   


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel


INTRODUCTION

The appellant served on active duty in the US Army from August 1967 to August 1969.  

These matters come before the Board of Veterans' Appeals, hereinafter the Board, from an April 2006 rating decision of the Department of Veterans' Affairs (VA), Regional Office (RO), in Los Angeles, California.  In August 2012, the appellant offered testimony before the undersigned Veterans Law Judge (VLJ) in Los Angeles.  A transcript of the hearing was prepared and has been included in the claims folder for review.  

The issue of entitlement to service connection for mitral valve prolapse is addressed in the REMAND portion of the decision below and it is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

On August 22, 2012, prior to the promulgation of a decision in the appeal, the appellant, through his accredited representative, submitted a memorandum indicating that the appellant was withdrawing his appeal with regard to the issue of entitlement to service connection for the residuals of malaria.  


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant with respect to the issue of entitlement to service connection for the residuals of malaria have been met.  38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. § 20.204 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Pursuant to 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn in writing at any time before the Board promulgates a decision, either in writing or on the record at a Board hearing.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the veteran or by his or his authorized representative.  Id.

In August 2012, the appellant, through his accredited representative, submitted a statement to the VA that he was withdrawing his appeal with respect to the issue involving entitlement to service connection for the residuals of malaria.  As the appellant has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appellate issue and it is dismissed.


ORDER

The appeal with regard to the issue of entitlement to service connection for the residuals of malaria is dismissed.


REMAND

The appellant claims that he suffers from mitral valve prolapse that he believes is service-related.  He was on active duty in the US Army from August 1967 to August 1969.  A review of his service treatment records fails to reveal treatment or complaints referable to a cardiac disorder.  These same service treatment records are negative for any diagnosis of mitral valve prolapse or any other cardiovascular disorder, disability, or disease.  As reported, the appellant left the service in 1969.  There are no medical records for the year following his discharge from service.  

Approximately seventeen years after the appellant was discharged from service, he sought treatment for heart palpitations.  After testing, he was diagnosed with mitral valve prolapse.  The etiology of the disorder was not provided.  Moreover, the appellant was not given any type of prescription for the treatment for the control of the disorder.  

In 2005, the appellant submitted a claim for benefits to the RO.  He stated that he was suffering from mitral valve prolapse that he averred was the result of or caused by his military service.  Following his claim, the appellant underwent a VA medical examination in February 2006.  He reported a history of heart palpitations, along with panic attacks.  Upon completion of the physical examination of the appellant, the examiner reported that the appellant was not suffering from congestive heart failure or arrhythmia.  A diagnosis of mitral valve prolapse was given.  The examiner did not, however, address the etiology of the disorder.  Thus, additional development is needed to obtain such an opinion.

The remaining, and available, medical records are also negative for any etiological opinion concerning the mitral valve prolapse. 

In addition to the action requested above, the AMC should also undertake any other development and/or notification action deemed warranted prior to readjudicating the claim on appeal.  Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims, the case is REMANDED to the AMC for the following development:

1.  The AMC must review the entire claims folder and ensure that all notification and development necessary to comply with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012) are fully complied with and satisfied as to the issue now on appeal.  The claims folder must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the issue on appeal.  A copy of any notification letter should be included in the claims folder for review.  

2.  The AMC should contact the appellant and ask that he identify any facilities where he has been treated for mitral valve prolapse and notify him that he should either provide medical records to VA or furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified.  Copies of the medical records from all sources (not already in the claims folder) should then be requested.  Any response received should be memorialized in the appellant's claims folder.  All records obtained should be added to the claims folder.  If requests for any private treatment records are not successful, the AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim.  See 38 C.F.R. § 3.159 (2012).

3.  Only after all of the appellant's medical records have been obtained and included in the claims folder for review, then the appellant should be afforded a VA cardiology examination.  The claims folder should be provided to the examiner for review in conjunction with the examination and the examiner should indicate in the report that the folder was reviewed.  

After performing the examination, to include any testing deemed appropriate, the examiner should render an opinion as to whether it is at least as likely as not (at least a 50 percent probability or better) that the appellant's previously diagnosed mitral valve prolapsed (as well as any other cardiac disorders that may be found) is related to service or is secondary to or aggravated by his service-connected posttraumatic stress disorder (PTSD).  The examiner should also note the appellant's assertions regarding the onset of the disability and the chronicity of the symptoms purportedly produced by the disorder in offering his/her medical opinion.

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner must provide a comprehensive report including rationales for all opinions and conclusions.

The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion.  That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion.  If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished.  If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010).  

4.  The AMC should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.  Specific attention is directed to the report of examination.  If any requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, that report must be returned for corrective action.  38 C.F.R. § 4.2 (2012); see also Stegall v. West, 11 Vet. App. 268 (1998).

5.  Thereafter, the AMC should readjudicate the claim.  If the benefits sought on appeal remain denied, the appellant and his accredited representative should be provided a supplemental statement of the case.  The supplemental statement of the case must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board, if in order.

The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified.  

The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal.  Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examination may result in an adverse determination.  See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).   

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).



______________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs