Citation Nr: 1332453 Decision Date: 10/18/13 Archive Date: 10/24/13 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 service-connected heart murmur, status-post aortic valve replacement. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty 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, in pertinent part, denied 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. The Veteran was later 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) (West 2002); 38 C.F.R. §§ 20.707, 20.717 (2012). Subsequently, the Veteran testified before the undersigned 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, February 2012, February 2013 and June 2013, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals VA treatment records dated through March 2013 as well as a July 2013 VA examination report. Such documents were considered in the August 2013 supplemental statement of the case (SSOC). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for service connection so that he is afforded every possible consideration. Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he 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). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The Veteran generally contends that his myasthenia gravis was caused or aggravated by his service-connected heart murmur, status-post aortic valve replacement, specifically that the condition began following heart surgery. The Board has sought an etiological opinion as to this claim on multiple occasions. As discussed in the Board's June 2013 remand, some of the evidence in the claims file supports a diagnosis of myasthenia while some of the evidence did not support such a diagnosis. The Board's June 2013 remand directed that an opinion as to whether the Veteran had a diagnosis of myasthenia gravis and, if so, whether such disability was caused or aggravated by his service-connected heart murmur was to be obtained. Such an opinion was obtained in July 2013. The examiner opined that a current diagnosis of myasthenia gravis was "speculative" as there was no objective findings and that the reported symptoms were atypical for such a diagnosis. The examiner further opined that even if the Veteran had a transient myasthenic symptoms in the past, a heart murmur or aortic valve replacement would have no relation to this diagnosis and that while any surgery might unmask such a condition, it would not cause it or permanently worse it. However, the examiner did not provide an explanation for this determination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). In light of this deficiency, it is unlikely that this opinion would survive judicial scrutiny. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court held that "where ... the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. In light of the deficiencies detailed above, this matter must be remanded to ensure compliance with the Board's previous remands. Accordingly, the case is REMANDED for the following action: 1. Return the claims file, to include a copy of this remand, to the July 2013 VA examiner for an addendum opinion. If the examiner who drafted the July 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. With regards to whether the Veteran's claimed myasthenia gravis was secondary to his service-connected heart murmur, is it at least as likely as not (at least a 50 percent probability) that the currently diagnosed disability was proximately caused, or aggravated (i.e. permanently worsened) beyond its natural progress, by the service-connected heart murmur, status post aortic valve replacement. The examiner should note the findings of the July 2013 VA examiner that the Veteran had transient myasthenic syndrome in the past. In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ 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).