Citation Nr: 1340394 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-03 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a first degree atrioventricular (AV) block. 2. Entitlement to service connection for a back disability to include lumbar disc disease with moderate mechanical low back pain, claimed as bulging disc. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active duty from October 1982 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008, rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), that denied service connection for both low back disability and heart disability. Subsequent thereto the Veteran underwent a VA examination in July 2009 with findings relevant to the appeal. The RO continued and confirmed the previous denial in an October 2009 rating decision. See 38 C.F.R. § 3.156(b). The Veteran filed a notice of disagreement in March 2010, and following a July 2011 Board Remand, a SOC was issued to the Veteran in January 2012. The Veteran has since perfected his appeal to the Board. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. The issue of entitlement to service connection for a back disability to include lumbar disc disease with moderate mechanical low back pain, claimed as bulging disc being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veterans first degree AV block is as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for a first degree AV block are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service treatment records show that the Veteran was diagnosed as having a first degree AV block in 1993 after he was evaluated for complaints of dizziness and light headedness. Post-service evidence includes a July 2009 VA examination along with a 2008 electrocardiogram showing that the Veteran has a current AV block. The July 2009 examiner further determined that the Veteran's current first degree AV block is most likely caused by or a result of the AV block shown during active duty. The three criterions for service connection have been met. The Board notes that the VA examiner made the notation that the Veteran's AV block is asymptomatic (i.e. producing or showing no symptoms). Such leaves the question as to whether an electrographic abnormality may, or may not, be a manifestation of a chronic underlying heart disorder. In this regard, as opposed to having symptoms without an underlying disability (see Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001)), the Veteran's AV block has previously been symptomatic (causing light headedness and dizziness) but just not so on the most recent examination. Put another way, the Board finds that the Veteran's current AV block, which had its onset in-service, is a disability for VA purposes but just does not result in any current impairment. ORDER Service connection for a first degree AV block is granted. REMAND With regard to his claim for service connection for low back disability, the Veteran reports that he receives treatment through the Orlando VA Medical Center (VAMC) pain management department as well as the "Claremont Florida VAMC". See January 2011 Report of General Information. The claims file includes records from the Orlando: Leesburg Community Based Outpatient Clinic (CBOC) and Gainesville VAMC. There is no evidence of records from the Clermont CBOC in the claims file. The Veteran statement indicates that these outstanding VA records are pertinent to his lower back claim. Under 3.159(c)(2), the VA is obligated to obtain relevant records from a Federal department or agency to include records from VA medical facilities. Thus, VA must request the Veteran's medical records from the Clermont CBOC as these records have been shown to be relevant by the Veteran's January 2011 correspondence and are not currently in the claims file. The Board also notes that there were misfiled documents in the Veteran's claim file regarding a Veteran who had two herniated discs and was involved in a helicopter crash. These misfiled documents have been removed from this Veteran's claim file and associated with the proper Veteran's claims file. While the VA examiner in July 2009 did not expressly rely on this evidence, and since the matter is being Remanded for additional development, an addendum opinion should be obtained. As the Veteran continues to seek VA medical care, his VA records should be updated for the file. VA medical records are deemed to be constructively of record in proceedings before the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board notes the Veteran's file currently contains records from Gainesville VAMC and Orlando VAMC through January 2010. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all records of VA medical treatment afforded to the Veteran since January 2010 by the Gainesville VAMC and Orlando VAMC and all related facilities for inclusion in the claims file. The RO/AMC should obtain all records pertaining to the Veteran's lower back disability from the Clermont - Community Based Outpatient Clinic (CBOC) since 2008. 2. After obtaining the outstanding records, the claims file should be returned to the examiner who conducted the 2009 back examination to obtain an addendum opinion. If that examiner is unavailable, a supplementary opinion should be obtained from an equally qualified examiner. A new physical examination should be scheduled and conducted if the examiner finds that such is warranted. A review of the claims file and any electronic records must be made. Based on this review, the examiner should provide an opinion: Whether it as likely as not (a 50 percent probability or greater) that the Veteran's current lower back disability had its onset in service or is otherwise etiologically related to the Veteran's active service. Consideration should be given to his treatment for low back strain in service as well as his lay assertion of experiencing continuous symptoms of low back pain since service discharge. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be adjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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 A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs