Citation Nr: 1760302
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 15-04 065 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana

THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent for coronary artery disease status post myocardial infarction with mitral valve regurgitation and paroxysmal atrial fibrillation.

2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected coronary artery disease.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel

INTRODUCTION

The Veteran served on active duty from September 1962 to September 1966, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision of the of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for coronary artery disease status post myocardial infarction and assigned an initial 10 percent rating, effective November 17, 2010.

In the context of his appeal for a higher initial rating for coronary artery disease, the Veteran raised the issue of entitlement to a TDIU. The RO denied the claim in a May 2015 rating decision; the issue is on appeal as part of the claim for a higher disability rating for coronary artery disease. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009) (holding that a claim for a TDIU, either expressly raised by the veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating).

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

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

REMAND

While the Board regrets the delay in deciding the Veteran’s appeal, remand is necessary to afford the Veteran an additional VA examination.

The Veteran contends that a rating of at least 60 percent is warranted for his service-connected coronary artery disease status post myocardial infarction, which has been rated 10 percent disabling since service connection was established, effective November 17, 2010, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005.

When evaluating diseases of the heart, including coronary artery disease, even if the requirement for a 10 percent (based on the need for continuous medication) or 30 percent (based on the presence of cardiac hypertrophy or dilatation) rating is met, METs testing is required in all cases except when there is a medical contraindication, when the left ventricular ejection fraction has been measured and is 50 percent or less, when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year, or when a 100 percent evaluation can be assigned on another basis. 38 C.F.R. § 4.100(b) (2017).

One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2.

The Veteran was afforded a VA examination in March 2015. The examiner indicated there was no medical contraindication for not performing METs testing; however, the examiner performed interview-based METs testing rather than an exercise stress test. The evidence of record documents that left ventricular ejection fraction has been measured as 55 percent or greater, there has been no evidence of congestive heart failure, and there is no basis to assign a 100 percent rating for the Veteran’s coronary artery disease. Therefore, because exercise METs testing is required and an exception does not appear to apply in this case, the Board must remand the appeal for another VA examination.

Prior to arranging for a VA examination, ask the Veteran to provide any ongoing private cardiology records dating since March 2015, or furnish appropriate authorization to enable VA to obtain records on his behalf.

Because the issue of a TDIU is dependent on the outcome of the increased rating claim, it is inextricably intertwined with that issue being remanded and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the AOJ should give the Veteran another opportunity to complete and submit a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. With any necessary assistance from the Veteran, obtain and associate with the claims file any ongoing private cardiology treatment records dating since March 2015.

2. Provide a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) to the Veteran and ask him to complete and return the form.

3. Schedule the Veteran for a VA examination to determine the severity of his service-connected coronary artery disease. The claims file must be made available to the examiner for review in connection with the examination. All necessary tests and studies should be conducted and the results of any such testing and studies should be included in the examination report.

In particular, the examiner must conduct METs testing and document symptoms experienced upon diagnostic testing unless there is a medical contraindication for such testing, the left ventricular ejection fraction has been measured and is 50 percent or less, or chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year. If exercise testing cannot be accomplished to determine the METs level at which dyspnea, fatigue, angina, dizziness, or syncope develops, the examiner must include an explanation for why this is so.

The examiner should describe the functional effects the Veteran’s service-connected coronary artery disease has on his usual occupation as a toolmaker, from which he retired in 2011. A complete rationale should be given for all opinions expressed.

4. After undertaking any other development deemed appropriate, the AOJ should readjudicate the claim of entitlement to an initial rating in excess of 10 percent for coronary artery disease and the claim for a TDIU. If any benefit sought is not granted in full, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an appropriate period of time for response. Thereafter, the case should be returned to the Board, if in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. §§ 5109B, 7112 (2012).

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K. Conner
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C. § 7252 (2012), 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).