Citation Nr: 0007313 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-21 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for paroxysmal tachycardia, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Cieplak, Associate Counsel INTRODUCTION The veteran had active duty service from April 1973 to April 1977 and from June 1978 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1998 rating decision by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 1998; a statement of the case was issued in December 1998, and a substantive appeal was received that same month. REMAND As a preliminary matter, the Board finds that the appellant's claim of entitlement to an increased evaluation for paroxysmal tachycardia is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). A claim that a service- connected condition has become more severe is well-grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The record shows that the veteran's claims file was certified on appeal and transferred to the Board in February 2000, and the veteran was notified of the transfer of the appeal by letter dated February 11, 2000. This letter advised the veteran that he could submit additional evidence within 90 days of the letter. The veteran's representative forwarded additional evidence from the veteran, and this evidence was received at the Board in late February 2000 (within the 90 day period). However, by regulation, pertinent evidence received by the Board within the 90 day period must be returned to the RO for initial review unless this procedural step is waived by the veteran. 38 C.F.R. § 20.1304(c) (1999). The evidence submitted in this case was not accompanied by any waiver. Accordingly, by regulation the case must be returned to the RO for preliminary review. Moreover, the above submission suggests that additional VA medical consultation and treatment records are available, which have not been associated with the claims file. The VA's statutory duty to assist the veteran includes the obligation to obtain pertinent treatment records, the existence of which has been called to its attention. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Ivey v. Derwinski, 2 Vet. App. 320 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In view of the foregoing, this case is REMANDED for the following actions and development: 1. All VA medical records (not already of record) documenting ongoing treatment for the veteran's service-connected cardiovascular disability should be obtained and associated with the claims file. This action should include (but not be limited to) obtaining all clinical records associated with the VA medical consultations referenced in the evidence submitted by the veteran in February 2000. 2. The RO should undertake any additional development it deems appropriate. Thereafter, the RO should review the expanded record and determine whether an increased evaluation is warranted. The RO's review should include consideration of the provisions of 38 C.F.R. § 3.321 (1999) and discussion of whether there has been marked interference with employment beyond that which is contemplated under the schedular criteria. 3. The veteran and his accredited representative should be furnished a Supplemental Statement of the Case (SSOC) concerning all evidence added to the record since the last SSOC. Thereafter, the veteran and his representative should be given an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this remand the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of this remand is to comply with the provisions of 38 C.F.R. § 1304(c) (1999), to further develop the record and ensure due process of law. The veteran and his representative have 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). ALAN S. PEEVY 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).