Citation Nr: 1338929 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-12 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a heart disorder, to include a murmur and cardiomyopathy. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1978 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The RO obtained additional medical evidence pertaining to the Veteran's claim after certification of the current appeal to the Board without the issuance of a supplemental statement of the case (SSOC). The Veteran did not initially submit a waiver of RO consideration of the newly submitted evidence. In November 2013, the Veteran indicated in a statement that he wished his case to be sent back to the RO for review of the additional evidence prior to any adjudication by the Board. Applicable VA regulations require that pertinent evidence must be referred to the agency of original jurisdiction (AOJ) for review and preparation of an SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2013). Thus, the Board must remand this appeal so that the RO may review this evidence, and if the claim remains denied, include such evidence in a SSOC. Id. A remand is also required to provide the Veteran with an addendum opinion to his August 2011 VA examination. Among the new evidence submitted by the Veteran is a letter from his private doctor dated August 2012. The doctor states that the Veteran had echocardiogram testing done in 2010 on which he noted signs of hypertrophic cardiomyopathy. Further, the doctor stated that the noted cardiomyopathy was the explanation for the Veteran's heart murmur, which was subsequently resolved after septal ablation. The private doctor's statement appears to contradict an August 2011 VA examiner's opinion that the Veteran's diagnosed left hypertrophic cardiomyopathy was less likely than not related to a heart murmur noted during active military service. An examination or opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, an examination is required when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4). Since the VA examiner did not have the opportunity to review the newly submitted evidence prior to making his opinion in August 2011, an addendum opinion is necessary to determine whether the examiner's assessment would be changed in light of the newly submitted evidence. Accordingly, the case is REMANDED for the following action: 1. Contact the examiner who conducted the August 2011 VA examination (or a suitable substitute if that examiner is unavailable) and obtain an addendum opinion. After review of the record, including the newly submitted evidence, the examiner must provide the following opinion: Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's diagnosed left hypertrophic cardiomyopathy is related to a heart murmur found in service or otherwise related to his active duty service? The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why a definitive opinion cannot be provided. A new examination is not required unless determined to be necessary by the VA examiner. 2. Review the expanded record and readjudicate the issue on appeal. Unless the benefits sought on appeal are granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ MICHAEL MARTIN 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) (2013).