Citation Nr: 1336372 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-17 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a heart disability based on additional disability due to treatment at a Department of Veterans Affairs (VA) Medical Center. REPRESENTATION Veteran represented by: Jeany C. Mark, Esquire ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION 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 Veteran had active service from December 1945 to May 1947. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran now resides in Virginia, so the matter is now handled by the RO in Roanoke, Virginia. This claim was previously denied in a December 2011 Board decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court issued a decision that set aside the Board's December 2011 decision, and remanded the matter to the Board for action in compliance with the motion. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. The Board notes that this claim is being remanded to ensure there is a complete record. After additional evidence is associated with the claims file, the Board will obtain an independent medical opinion. REMAND The Veteran seeks entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a heart disability based on additional disability due to treatment at a VA medical center. In the March 2013 decision, the Court found that that the VA did not satisfy its duty to assist. The Court noted that the Veteran was afforded a VA examination in March 2011 and the examiner rendered a medical opinion; however, the examination was not associated with the claims file. A review of the file indicates there are no examination findings, diagnoses, or other details of the March 2011 VA examination in the claims file. There were several e-mails exchanged in March 2011 among VA personnel regarding the location of the missing VA examination report, and included a response from the VA examiner, who noted that she was faxing the examination report. Although a fax cover is located in the claims file from March 2011, indicating that the examination report was sent, the claims file does not contain the March 2011 VA heart examination report. On remand, the Board finds that a copy of the complete March 2011 VA heart examination must be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: (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 and associate with the claims file the complete March 2011 VA heart examination, including all findings, diagnoses, and details of the examination. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. All actions to obtain the requested records should be documented fully in the claim's file. Thereafter, the Veteran should be notified in writing if the records are unavailable. Because these are Federal records, if they cannot be located or no such records exist, a memorandum of unavailability must be associated with the claim's files. 2. After completing the above actions, and 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. 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. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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).