Citation Nr: 25003294 Decision Date: 03/07/25 Archive Date: 03/07/25 DOCKET NO. 19-23 377A DATE: March 7, 2025 REMANDED Entitlement to an increased rating in excess of 50 percent for myasthenia gravis is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to July 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office(RO). In October 2022, the Veteran testified at a virtual hearing conference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with he claims file. The appeal was previously before the Board in January 2023, September 2023 and May 2024. Entitlement to an increased rating in excess of 50 percent for myasthenia gravis is remanded. The Veteran seeks a rating in excess of 50 percent for myasthenia gravis. Regrettably, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide his claim so that he is afforded every possible consideration. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. As background, the Veteran's myasthenia gravis is rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8025. Under DC 8025, a diagnosis of myasthenia gravis with ascertainable residuals warrants the assignment of a minimal rating of 30 percent. DC 8025 also provides that consideration should especially be afforded to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, and visceral manifestations, utilizing the diagnostic code(s) which refers to the appropriate bodily system of the Rating Schedule. A Note under DC 8025 further provides that when a rating in excess of the 30 percent minimum rating for myasthenia gravis is assigned, the diagnostic code(s) utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. Essentially, the Note under DC 8025 provides that a rating higher than 30 percent may be assigned for myasthenia gravis based upon the combined evaluation of its residuals. In June 1969, the AOJ granted service connection for myasthenia gravis, and assigned the minimal rating of 30 percent under DC 8025. In May 1972, the AOJ increased the rating to 50 percent using the hyphenated diagnostic code of DC 8025-6078 for myasthenia gravis rated under DC 6078 for impairment of visual acuity (effective prior to December 10, 2008). The 50 percent rating for myasthenia gravis has been in effect for more than 20 years and is protected under the law, therefore absent a showing of fraud, it may not be reduced. See VA June 2017 rating decision. Despite the fact that the Veteran is in receipt of more than a 30 percent rating for myasthenia gravis, any residuals associated with myasthenia gravis that are not compensated under the current rating must be identified and rated under separate diagnostic codes. An October 12, 2018 VA treatment record reflects that the Veteran reported that he is followed by a non-VA neurologist for his myasthenia gravis. In that record, Dr. D. is listed as his Non-VA neurologist, and Dr. R. is listed as his non-VA primary care physician. On November 21, 2024, private treatments records from the St. Francis Health System, and from Dr. D. and Dr. R. were associated with the claims file, however, it does not appear that all potentially relevant records were obtained. The appeal period for this claim stems from one year prior to October 2016 to the present, yet the earliest relevant private treatment records of record during the appeal period from the St. Francis Health System begin in 2021. It is reasonable to expect that any outstanding medical records from the Veteran's non-VA providers, especially his neurologist, may identify additional myasthenia gravis residuals, or at least help to clarify and interpret the current medical evidence of record, some of which is contradictory. Therefore, a remand is required to allow VA to obtain authorization and request any outstanding private treatement records pertinent to the Veteran's myasthenia gravis. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.3159(c)(1). The Veteran has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). The matter is REMANDED for the following action: 1. Update the Veteran's VA treatment records for the period from May 2024 to the present, including obtaining any copies of any non-VA medical records maintained in VISTA. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs and symptoms involving the service-connected myasthenia gravis. Obtain any relevant private treatment records not obtained in November 2024 that covers private treatment for the disability for the period from October 2016 to the present. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. After the VA treatment records and any additional private treatment records have been obtained, return the Veteran's claims file to the neurologist who conducted the June 20, 2024 VA Central Nervous System and Neuromuscular Diseases examination, for an addendum opinion. If that neurologist is not available, the AOJ should obtain an addendum opinion from a different neurologist. The neurologist is asked to review the expanded record, to include all private treatment records and VA examination reports. After reviewing the evidence, the examiner is asked to: List all of the residuals of the Veteran's myasthenia gravis, considering any muscular weakness in the eyes, face, neck, mouth and upper and lower limbs. (Continued on the next page) ? 4. Readjudicate the Veteran's claim. If the decision remains adverse to the Veteran, furnish the Veteran and his agent with a supplemental statement of the case and afford them an appropriate period of time to respond. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan E. Leary The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.