Citation Nr: 0003976 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-12 169A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased rating for cardiovascular disease, coronary artery disease, including ventricular tachycardia as secondary to service-connected posttraumatic stress disorder (PTSD), currently evaluated as noncompensable. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from March 1943 to November 1945 and from October 1950 to December 1950. A May 1997 decision from the Board of Veterans' Appeals (Board) granted service connection for cardiovascular disease, coronary artery disease, including ventricular tachycardia, as secondary to service-connected PTSD. This appeal is before the Board from an October 1997 rating decision from the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO) that granted a noncompensable rating for cardiovascular disease, coronary artery disease, including ventricular tachycardia as secondary to service-connected PTSD. REMAND The veteran's claim for a compensable rating in excess of the current 0 percent for cardiovascular disease, coronary artery disease, including ventricular tachycardia as secondary to service-connected PTSD is well grounded. When a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999). Once the veteran has established a well-grounded claim, the VA has a duty to assist the veteran in the development of facts pertinent to his claim. See 38 U.S.C.A. § 5107(a) (West 1991). In this case, the VA has a duty to assist the veteran in obtaining additional medical records and a comprehensive VA medical examination. The VA must obtain additional medical records. Although the veteran has been treated regularly at the VA Medical Center, and the May 1998 examination report referred to events in 1998, the most recent treatment record in the claims file was dated 1997. Moreover, where the VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). The veteran must receive a current VA examination because the May 1998 examination report did not provide sufficient detail. A doctor's August 1997 letter stated that the veteran was profoundly disabled by the presence of cerebellar ataxia and significant ischemic cardiomyopathy complicated by severe ventricular arrhythmias, hypothyroidism and diabetes mellitus. The August 1997 doctor stated that cerebellar ataxia and heart disease confined the veteran to a wheelchair, and the veteran's November 1997 statement alleged that he would die without the pacemaker and medications. The May 1998 VA examination was also inadequate because its findings were based on a 1992 echocardiogram and angiography and a March 1997 chest x-ray and electrocardiogram. The report also failed to provide a full description of the effects of the heart disability upon the veteran's ordinary activities, such as ambulation. If a diagnosis is not supported by the finding on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (1999). Moreover, the veteran's August 1998 statement alleged that he did not receive a VA examination in May 1998. He alleged that he and he daughter arrived for the scheduled appointment and that the cardiologist and VA supervisor told them that there would not be an examination. Therefore, this case is remanded to obtain the veteran's full medical records and a comprehensive examination by a VA physician. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 4.2. This matter is remanded to the RO for further development as follows: 1. The RO should ask the veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, inpatient and outpatient, who have treated him for heart disorders since 1989. After securing any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources whose records have not previously been secured. Failures to respond or negative replies should be noted in writing and also associated with the claims folder. 2. After the above-requested development has been completed and the additional evidence added to the record, the veteran shall be afforded a comprehensive VA examination. Any further indicated special studies should be conducted. The claims file and a separate copy of this remand should be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated in this regard. The veteran is hereby informed that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (1999). It is essential that the examiner review the claims folder in its entirety. The examiner should also take specific note of the veteran's reported and documented medical history, including all heart conditions. The examiner should then offer a medical opinion as to: a) the medical classification of the heart condition(s) and etiological, anatomical, pathological, laboratory, and prognostic data required for the ordinary medical classification; b) a full description of the effects of the disability upon the veteran's ordinary activities; and c) the degree of disability due to the service- connected heart disability versus the degree due to other disabilities, including non-service connected hypothyroidism and diabetes mellitus. Any opinions expressed by the examiner must be accompanied by a complete rationale. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and medical opinion to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the claim for a (compensable) rating in excess of the current zero percent rating for a heart disability based upon the entire evidence of record. All pertinent laws, regulations, and Court decisions should be considered, including 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, and 4.104 (1999). The veteran and his representative, if any, should be provided with a supplemental statement of the case, which includes notice of any additional pertinent laws and regulations that were used, and a full discussion of action taken on the veteran's claims. The RO's actions should follow the Court's instructions detailed in Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). A reasonable period of time for a response should be afforded. 5. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. V. L. Jordan Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).