Citation Nr: 1805215 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 08-06 575A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for Brugada syndrome REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran had active military service from August 1974 to August 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was previously remanded by the board in October 2015, March 2016, and April 2017. It is back before the Board for appellate consideration. Appeals of entitlement to service connection for right and left leg, back, and acquired psychiatric disabilities were denied by the Board in an October 2015 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2016, the parties (the Secretary of VA and the Veteran) filed a Joint Motion for Partial Remand (JMR), which the Court granted in January 2017, vacating the October 2015 decision and remanding the appeal to the Board for action consistent with the JMR. The Board again remanded these issues in April 2017. In an August 2017 rating decision, service connection for PTSD, degenerative arthritis of the lumbar spine, and radiculopathy of the bilateral lower extremities was granted. The August 2017 rating decision represents a full grant of the benefit sought for the claims of entitlement to service connection. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). In October 2017, the Veteran appealed the initial ratings assigned for service-connected PTSD, low back, and lower extremity disorders. As documented in the Veterans Appeals Control and Locator System (VACOLS), the AOJ is developing the Veteran's appeal as to these issues. The Board does not have jurisdiction over these matters, and any action taken to ensure that a Statement of the Case is issued for the Veteran's appeal would be premature. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case (SOC) has not yet been issued, a remand to the RO is necessary). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains documents that are either duplicative of the evidence in the VBMS file or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is required to ensure compliance with the prior Board remands. Such remands confer upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted by the Board in the October 2015 remand, the Veteran contends that he has Brugada syndrome that is related to his service. He submitted a November 2011 statement that he had an EKG during service at which time his doctor told him that he had long QTs. In a May 2011 private medical opinion, the Veteran's treating chiropractor Dr. Yocom stated that the Veteran had Brugada rhythm and explained that he had episodes of palpations during his active service. He stated that had the Veteran been cardiographed when being evaluated for palpations during service, the diagnosis would have been relatively apparent. He opined that it is more likely than not that the Brugada syndrome is directly related to the Veteran's symptoms of palpation. He further opined that it is more likely than not that the same is directly and causally related to his service via a misdiagnosis. In a link cited by the Veteran's representative in an October 2015 Brief, according to the Mayo Clinic, Brugada syndrome is frequently an inherited condition. Symptoms included irregular heartbeats and palpitations. In October 2015, the Board remanded the matter in order to determine the nature and etiology of any currently diagnosed Brugada syndrome as the evidence of record did not contain a VA medical examination or medical opinion as to whether the Veteran's Brugada syndrome is related to his service, and the private opinion was provided by a chiropractor who does not specialize in the treatment of cardiac disabilities. As noted in the March 2016 remand, the AOJ did not provide the Veteran with a VA examination for his claim of entitlement to service connection for Brugada syndrome. Thus, a new examination was ordered on remand. The March 2016 remand orders specifically asked that the examiner discuss the Veteran's assertions in a November 2011 submission of having been told in service that he had long QTs. A VA examination was conducted in May 2016. The VA examiner noted the Veteran's assertions of in-service palpitations. However, no discussion of the Veteran's statements regarding in-service Long QT's was provided. Thus, in April 2017, the Board again directed that a VA opinion be provided in compliance with the previous remands. The Board notes that the requested action has not been carried out on remand for the Veteran's claim of entitlement to service connection for Brugada syndrome. Indeed, VA examinations were conducted for the other claims also remanded in the April 2017 Board remand. However, as documented in an August 2017 Deferred Rating Decision, there is no evidence that an opinion regarding the Veteran's claimed Brugada syndrome was even requested. Absent compliance with the previous remands of record, the Board is unable to take action on this appeal. Stegall v. West, 11 Vet. App. at 271. Thus, remand is again warranted for this claim. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Obtain another VA opinion from the May 2016 VA examiner or from another examiner if that examiner is not available, as to the etiology of the Veteran's Brugada Syndrome. All pertinent evidence of record should be made available to and reviewed by the examiner. Based on the review of the record, the examiner should respond to the following: a. Does Brugada Syndrome constitute a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease)? b. If the Brugada syndrome is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. c. If the examiner finds that the Brugada syndrome is a disease, was it aggravated beyond the natural progression during his military service? d. If Brugada syndrome is not a congenital or developmental defect or disease, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the disorder pre-existed service. e. If there is clear and unmistakable evidence that the disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. f. If there was an increase in the severity of the Veteran's disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. g. If there is no clear and unmistakable evidence that the current disorder pre-existed service, then the examiner is asked whether it is at least as likely as not (i.e., a 50 percent or better probability) that the disorder had its onset during service or is otherwise related to service. In answering the foregoing questions, the examiner must discuss the Veteran's assertions of having an EKG in service that showed long QTs. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The examiner must not ignore the Veteran's competent reports of symptoms experienced during active service and since. 4. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. 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 readjudicated. 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 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). _________________________________________________ K. MILLIKAN 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) (2017).