Citation Nr: 1614006	
Decision Date: 04/06/16    Archive Date: 04/25/16

DOCKET NO.  09-44 686	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an increased rating for service connected mitral valve prolapse, currently evaluated as 10 percent disabling.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Tracie N. Wesner, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1988 to October 1992.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2008 and September 2009 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), located in Nashville, Tennessee.

In December 2010, the Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Board finds that remand is again in order to obtain METs testing in connection with the Veteran's claim for an increased rating for her service-connected mitral valve prolapse.  This matter was previously remanded in May 2011 and November 2014 to obtain a VA examination.  In its November 2014 Remand, the Board noted that the applicable regulations and rating criteria require METs testing in all cases, except where four specific exceptions are met.  See 38 C.F.R. § 4.100(b) (2015).  The Board noted that none of the exceptions applied in this case and thus, METs testing was required to be performed.  See November 2014 Board Remand.  

The Veteran was provided with a VA examination in February 2015; however, METs testing was not performed because the VA examiner determined that the Veteran did not currently have mitral valve prolapse, and her current cardiac condition is unrelated to her symptoms in service.  The Veteran argues that the February 2015 VA examination was inadequate because the VA examiner did not provide the responses directed by the November 2014 Remand.  See February 2016 Appellate Br. at 1.  

The Board agrees that there has not been substantial compliance with the November 2014 remand directives.  The Veteran has been service connected for mitral valve prolapse since October 2005 and as such, service connection for this disability may not be severed except upon a showing that the original grant was based on fraud or that she did not have the requisite service or character of discharge.  38 U.S.C.A. § 1159 (West 2014); Bruce v. West, 11 Vet. App. 405 (1998); 38 C.F.R. § 3.957 (2015).  Thus, regardless of whether the Veteran currently has mitral valve prolapse, METs testing is necessary to determine the correct rating for her service-connected disability.  Consequently, remand for additional testing is warranted.  Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

1. Obtain all outstanding VA and private medical records regarding the Veteran's treatment for her current heart condition.  

2.  After completing the above development, schedule the Veteran for the appropriate VA examination to determine the current nature and severity of her heart condition and any related symptoms.  The entire record should be made available to and reviewed by the examining VA clinician(s), and the examination report(s) should note that such evidentiary review took place.  

A laboratory determination of METs by exercise testing must be completed unless there is a medical contra-indication, the left ventricular ejection fraction has been measured and is 50 percent or less, or when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the last year.

If a laboratory determination of METs by exercise testing cannot be conducted due to medical reasons, the examiner must provide an estimate of the level of activity (expressed in METs and supported by specific examples) that results in dyspnea, fatigue, angina, dizziness, or syncope.  

3.  Then readjudicate the appeal.  If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.

The appellant 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 2014).



_________________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).