Citation Nr: 1230136	
Decision Date: 08/31/12    Archive Date: 09/05/12

DOCKET NO.  06-11 869	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

1.  Entitlement to a total disability evaluation, based on individual unemployability, due to service-connected disabilities (TDIU) prior to June 11, 2007.

2.  Entitlement to a TDIU rating effective from December 8, 2007.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel



INTRODUCTION

The Veteran served on active duty from March 1980 to February 1993.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida.  

Upon reflection, the Board deems it necessary to make plain that the present appeal arises from the July 2004 rating action, granting service connection claims for hypertension and coronary artery disease associated with hypertension.  Prior to the expiration of the applicable appellate period, the record contained (I) a February 2005 submission from the Veteran that indicated he was rendered unemployable, due to service-connected disabilities; and (II) a May 2005 VA examination report that discussed the level of occupational impairment caused by his service-connected disabilities.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (noting, regardless of whether physically on file, when records are generated by VA facilities such records become constructively of record); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

In June 2005, the RO denied a TDIU rating and the RO has treated this as the rating decision on appeal.  

Although not construed as a notice of disagreement (NOD) with the July 2004 rating action, the Veteran's February 2005 submission and the May 2005 VA examination report where of record prior to the expiration of the applicable appellate period.  Moreover, the aforementioned evidence was new and competent evidence related to the Veteran's employability and the initially assigned disability evaluations that were less than the maximum evaluation permitted under law.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2011).  The courts have also held that, following the grant of service connection, any new evidence related to unemployability based on the underlying disability that is received prior to the expiration of the relevant appellate period, is material on its face.  See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009).  As such, the Board finds that relevant new and material evidence (i.e., the Veteran's February 2005 submission and the May 2005 VA examination report) was of record within one year of the July 2004 determination, precluding the determination from becoming final.  See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (holding, "VA must assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim."); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).  Thus, the July 2004 rating action is the proper determination on appeal.  

The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ), in April 2009, and the transcript has been associated with the claims folder.  

The Board previously remanded this matter in April 2010.

In April 2010, the Board noted that a December 2008 statement from the Veteran's service organization representative and his April 2009 Board testimony, raised service connection claims for peripheral vascular disease and an acquired psychiatric disorder, to include a mood disorder, which had not been adjudicated by the Agency of Original Jurisdiction (AOJ) in the first instance.  The record indicates that since December 17, 2008, the Veteran has been granted service connection for right and left lower extremity peripheral vascular disease; however, there is no indication, in the claims folder or on the Virtual VA system that the AOJ has address his service connection claim for an acquired psychiatric disorder, to include a mood disorder.  As this claim remains unadjudicated by the AOJ, the Board does not have jurisdiction over the matter.  As noted in the Remand below, the RO/AMC has been instructed to adjudicate this issue.  In this respect, the Board finds that the claim of service connection for a psychiatric disorder is inextricably intertwined with the claim as to whether a TDIU rating is warranted effective from December 8, 2007.

The claim for a TDIU rating effective from December 8, 2007being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran has not been employed, during the period under review.  

2.  The Veteran's level of education, specialized training and work history are consistent with an occupation requiring continuous and strenuous physical activity.  

3.  Prior to February 2, 2001, the Veteran had not established entitlement to service connection for any disability.

4.  Service connection has been in effect for coronary artery disease associated with hypertension, rated 60 percent from February 2, 2001, and 100 percent disabling from December 8, 2007; hypertension, rated 10 percent disabling, effective February 2, 2001; and a noncompensable scar, residuals of excision of pilonidal cyst, effective February 2, 2001.  

5.  The Veteran was granted a TDIU rating effective from June 11, 2007.

6.  Since December 17, 2008, service connection has been in effect for right and left lower extremity peripheral vascular disease associated with coronary artery disease, respectively rated as noncompensable.  

7.  Since February 2, 2001, the Veteran's service-connected disabilities have manifested in symptoms such as chest pain, fatigue and weakness.  

8.  Resolving all reasonable doubt in the Veteran's favor, from February 1, 2001, to June 10, 2007, service-connected coronary artery disease associated with hypertension, and hypertension have prohibited the Veteran from securing or following a substantially gainful occupation.  


CONCLUSIONS OF LAW

From February 2, 2001, to June 10, 2007, the criteria for a TDIU rating are met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to assist and notify

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In the present matter, the notification letters sent in March 2005 and February 2008 provided the Veteran with an explanation of the type of evidence VA would attempt to obtain on his behalf, that the evidence must demonstrate a level of disability sufficient to obtain and maintain substantially gainful employment, and that the VA would attempt to obtain relevant records to assist in supporting his claim.  The aforementioned letter further requested the Veteran furnish the VA with any relevant treatment dates and provided him the relevant diagnostic criteria.  As the purpose of VA's notice requirements have been met, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed.  Moreover, the Board finds that any error in the content of a particular notice, or to its timing rendered harmless as the Veteran had a meaningful opportunity to participate in the adjudication process and was not prejudiced by any notice deficiency.  See Goodwin v. Peake, 22Vet. App. 128 (2008).

Further, VA has completed all necessary development of evidence related to the present claim.  VA has obtained the Veteran's service and post-service treatment records, as well as his Social Security Administration (SSA) records.  The Veteran has been provided an appropriate VA examinations and his request for a hearing has been honored.  Further, the Veteran has not identified any additional evidence VA should seek to obtain on his behalf, nor is any such evidence reasonably indentified by the record.  Moreover, the AMC/RO has substantially, if not fully, complied with the Board April 2010 remand instructions.  See Stegall v. West, 11 Vet. App. 268 (1998).  In light of the foregoing, VA has made all reasonable efforts to assist the Veteran substantiate his claim and legally need not undertake any further efforts to further development the appeal.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing to (I) fully explain the issues and (II) suggest the submission of evidence that may have been overlooked.  At the April 2009 Board hearing, the VLJ posed relevant questions, discussed the evidence of record and sought to identify pertinent evidence that was not of record.  In so doing, the VLJ informed the Veteran and his representative of the issues on appeal, the basis of the prior determination and the elements of the claims that were lacking.  A review of the record also reveals no assertion, by the Veteran or his service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing.  Moreover, the Veteran and his service organization representative demonstrated actual knowledge of the elements and evidence necessary to substantiate the claim, as evident in the provided testimony, oral presentation and questions posed, which focused on the evidence and elements necessary to substantiate the claim.  As such, the VLJ complied with the duties set forth in Bryant and that the Board can adjudicate the claim based on the current record.  

	

TDIU claim

By way of background, a June 2005 rating action denied entitlement to a TDIU, the Veteran perfected appellate review of this determination, and the Board remanded the matter for additional development in April 2010.  Prior to any further appellate review, a June 2011 rating action granted a TDIU, effective June 11, 2007.  The matter has now been returned to the Board for appellate review.  

Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of (I) a single service-connected disability ratable at 60 percent or more, or as a result of (II) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R §§ 3.340, 3.34l, 4.16(a).  Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  See 38 C.F.R. § 4.16(b).

The Board notes that the fact that a Veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish unemployability.  The relevant question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15).  In reaching such a determination, the central inquiry is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

Prior to February 2, 2001, service connection was not in effect for any disability.  
Service connection, however, has been in effect for coronary artery disease associated with hypertension, rated 60 percent from February 2, 2001, and 100 percent disabling from December 8, 2007; hypertension, rated 10 percent disabling, effective February 2, 2001; and a noncompensable scar, residuals of excision of pilonidal cyst, effective February 2, 2001.  Since December 17, 2008, service connection has been in effect for right and left lower extremity peripheral vascular disease associated with coronary artery disease, respectively rated as noncompensable.  

From February 2, 2001 to June 10, 2007, the Veteran's cardiac disability has been rated 60 percent disabling, hypertension was rated 10 percent disabling and a noncompensable disability evaluation has been in effect for the scar, residuals of excision of pilonidal cyst.  See 38 C.F.R. § 4.25, Table I-Combined Rating Table.  

The Board notes that under 38 C.F.R. § 4.16(a) the Veteran's service-connected coronary artery disease and his service-connected hypertension is considered one disability which is rated at 60 percent or more.  The Board finds that the service-connected coronary artery disease and the service-connected hypertension results from a common etiology, as well as affects a single body system, e.g. cardiovascular system.  As such, the Veteran is found to have one disability rated at 60 percent or more.  The Board notes that the Veteran is rated noncompensable for the service-connected scar, residuals of excision of pilonidal cyst.  This is not a bar to meeting the schedular criteria.  In this regard, the Court upheld a finding that a Veteran with three service connected disabilities, resulting from a single accident and yielding a combined rating of 60 percent, to meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) despite other unrelated service connected disabilities evaluated as noncompensable.  Gary v. Brown, 7 Vet. App. at 230 (1994).  Accordingly, the Veteran's service-connected coronary artery disease and hypertension disabilities satisfies the schedular criteria for a TDIU, notwithstanding the noncompensable evaluation for scar, residuals of excision of pilonidal cyst.  Id.; 38 C.F.R. § 4.16(a).  To find otherwise would lead to the absurd result that a Veteran with more than one service-connected disability is penalized in that he or she is required to have a combined disability rating of 70 percent while a Veteran with a single service-connected disability need only have a 60 percent rating.  See Sabonis v. Brown, 6 Vet. App. Vet.App. 426, 429 (1994) (stating that plain meaning of language of a statute must be given effect unless it would lead to absurd result).  

As the Veteran meets the schedular criteria of having one service-connected disability rated at least 60 percent disabling, the remaining issue is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.  

The Veteran has been unemployed since approximately June 12, 2000.  The Veteran's level of education, to include a high school diploma, and his specialized training/work experience is most congruent with a physically demanding occupation (e.g., lawn care, maintenance and shipping and receiving).  See "Section 2-Infromation About Your Work," and "Section 7-Education/Training Information," SSA Work History Rpt. (Form SSA-3369-BK), Nov. 15, 2001; see also Initial Private Medical Evaluation Rpt., Nov. 16, 2001; "Discussion," Social Security Administration (SSA) Work Activity Report-Employee (Form SSA-821-BK), Nov. 15, 2001.  

An April 2002 Social Security Administration (SSA) Disability Determinations and a revised February 2005 SSA Disability Determination reflect, at least arguable, evidence that a nonservice-connected low back condition may impact the Veteran's employability.  While the April 2002 SSA determination only notes a diagnosed back disorder as the cause of disability, the determination was revised in February 2005 to reflect a determination that the Veteran's disability was related to a low back disability and a heart disability (i.e., ischemic heart disease).  There is no competent evidence of record, medical or lay, distinguishing the level of employment impairment attributable to nonservice-connected conditions from that of service-connected conditions.  Given there is insufficient evidence to distinguish the employment impact the symptoms associated with nonservice-connected disability(is) from the employment impairment caused by service-connected disability, the Board will review the claim considering all relevant manifestations to be part of the service-connected disabilities.  Mittleider v. West, 11Vet. App. 181, 182 (1998) (citing, Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)).  

During a September 2001 VA examination, the Veteran detailed cardiac disability symptomatology that included numbness and chest pain; however, at this time, he stated he was able to walk "the length of a Wal-Mart store" without experiencing chest pain.  The examination report further also reflects the VA examiner's observation that the Veteran became breathless when performing the minimal physical activities associated with the examination (e.g., getting on and off the exam table and sitting up form a lying position).  Also noted were objective medical examination findings, which confirmed the presence of cardiac and vascular abnormalities.  Although indicating that the Veteran was unemployed, the examiner did not provide any opinion or statement as to the determinative matter at hand.  

At an April 2004 VA hypertension examination, the Veteran provided an account of cardiac disability symptomatology that was exacerbated with any extended or intense physical exertion.  Objective examinations findings were generally consistent with those noted on the previous examination.  The examiner stated that the Veteran's physical ability, with regard to his heart, was greater than 3 METs but less than METs of activity, no relevant employability opinion was provided.

A May 2005 general VA examination report documents cardiac symptoms, to include (I) morning chest tightness approximately one-to-two times a month; (II) weekly shortness of breath and diaphoresis for approximately five-to-ten minutes; (III) two-to-three monthly episodes of dizziness for a duration of approximately five-to-ten minutes.  At this time, the Veteran also conveyed that he was unable to work as a laborer "first and foremost because of his low back pain and problems and secondly because of his coronary artery disease."  The examiner stated that cardiac symptoms were exacerbated by minimal physical activity, to include walking for five-to-ten minutes, and resulted in lower extremity weakness and fatigue.  Ultimately, the examiner reported an inability to determine the extent that service-connected hypertension and coronary artery disease impacted the Veteran's level of activity tolerance.  

The Veteran was hospitalized at a private facility, in November 2005, due to an increase in angina (i.e., chest pain).  At this time, the private physician noted that the Veteran was also hospitalized in the year 2001 because of shortness of breath, chest tightness and upper extremity radiating pain, and the symptoms had persisted since approximately 1995.  

The Veteran underwent VA heart examinations in September 2007 and March 2008.  During the respective examinations, the Veteran detailed cardiac disability symptomatology, to include shortness of breath and angina, which had progressively increased in severity since the year 1995.  Although only the March 2008 examiner was able to review the claims folder, the respective examiners provided virtually identical (I) reports of the Veteran's extensive cardiac treatment history and (II) comprehensive current examination findings.  Ultimately, based on his account of symptomatology, relevant medical evidence and current examination findings, the respective September 2007 and March 2008 examiners confirmed the Veteran's heart disease diagnosis and indicated that the general occupational effect of this diagnosis was that he was not employed.  

A January 2008 statement from private physician B. M., M.D., reports the Veteran's relevant medical treatment since June 2007 and details the course of his heart and peripheral vascular treatment.  Relying on his familiarity with the Veteran's medical conditions, examination findings and relevant medical expertise, Dr. B. M. opines that the Veteran "will have great difficulty performing any exertional (sic) work....[and] has an approximate 5% chance of being employable" because of his severe left ventricular dysfunction and peripheral vascular disease.  

In connection with the Board's remand order, the Veteran was provided VA heart and VA hypertension examinations, in July 2010, by a single VA examiner.  The Veteran continued to provide a virtually identical account of cardiac disability symptomatology.  The respective examination reports also reflect extensive documentation of the Veteran's medical history.  Ultimately, based on the medical evidence of record, current examination findings and the nature of the Veteran's previous employment, the examiner opined that relevant medical findings did not reflect a decrease in cardiac function severe enough to cause chest pain and shortness of breath that would limit strenuous activities or result in unemployability until approximately July 2007.  

In addition to the evidence noted above, the Board has also considered all the other relevant evidence of record, medical and lay, which are generally consistent the evidence highlighted herein.  Also of record are the Veteran's responses on a January 2005 questionnaire provided by the Department of Health Developmental Disabilities Division (DOH DDD Form M-44C), indicating cardiac symptoms such as shortness of breath, heart pain/"flutter," and lack of endurance prevent him from performing the physical tasks associated with his chosen occupation.  Further, the record contains statements from family (e.g., his aunt, brother, nephew and fiancée) and long-time friends, which provide independent and generally consistent accounts of observing the Veteran's cardiac symptoms.  

      Merits

Based on the evidence of record, medical and lay, the Board concludes that a TDIU is warranted, from February 2, 2001, to July 10, 2007.  

The Veteran has provided a competent and credible account of cardiac disability symptomatology and of relevant occupational impairment(s).  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In numerous statements, to include a November 2001 Form SSA-3369-BK, the Veteran provides a generally consistent account of the physical activities, such as heavy lifting and continuous walking, central to his occupation as a laborer.  Further, he details symptoms such as weakness, fatigue, shortness of breath, chest pain and lower extremity functional impairment associated with is service-connected cardiac disability.  His April 2009 testimony before the Board, and the many lay statements of record provide competent and independent accounts of the Veteran's limitations due to fatigue, weakness and chest pain and tend to further corroborate his account.  These factors considered with all other evidence of record render the Veteran's statements on these matters, competent, credible and highly probative.  See Buchanan, 451 F.3d at 1335; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence).  

Additionally, the objective medical evidence of record consistently and continually documents the nature, extent and severity of the Veteran's cardiac disability manifestations.  A September 2001 VA examiner reported observing the Veteran becoming breathless when undertaking the limited physical activities associated with the examination.  Also, a November 2005 private hospital record confirms that the Veteran was admitted due to increased angina (i.e., chest pain), and that he was hospitalized in the year 2001 because of similar symptoms.  While these records do not reflect specific medical statements relating the reported symptoms to the service-connected cardiac disability, the records confirms a cardiac disability diagnosis, at least suggesting the noted symptoms are associated with the respectively diagnosed cardiac disability.  Moreover, in a May 2005 VA examination report, the VA examiner clearly stated that the Veteran's cardiac disability symptoms were exacerbated by minimal physical activities and noted such symptoms to include weakness and fatigue.  In light of the foregoing, the Board finds that the medical evidence of record both corroborates the Veteran's account as to the presence of cardiac disability symptomatology and adequately supports a conclusion that these symptoms are attributable to his service-connected cardiac disability.  

Turning to the impact the Veteran's service-connected cardiac disability, including hypertension has on employability, the Board finds the most probative medical opinions of record tend to weigh in favor of the claim.  After appropriate examination in September 2007 and March 2008, respective VA examiners attributed the Veteran's unemployment to his cardiac disability.  What is more, the January 2008 statement of private physician B. M., M.D., states the Veteran "will have great difficulty performing any exertional (sic) work," at least in part because of his cardiac disability, which the Board finds to adequately convey an opinion that the Veteran is rendered unemployable by cardiac disability manifestations.  Importantly, the basis of the respective opinions clearly reflect reliance on relevant medical expertise and consideration and analysis of (I) the relevant medical evidence of record, (II) current examination findings and (III) the Veteran's credible account of symptomatology, making the respective conclusions highly probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  What is more, although the courts have rejected the treating physician rule, the probative value of Dr. B. M.'s opinion is enhanced when considered with the physician's knowledge and experience treating the Veteran's respective conditions.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993).  

Further, consistent with the evidence outlined above, the February 2005 SSA disability determination of record provides evidence indicative of unemployability due to service-connected cardiac disability.  The February 2005 SSA disability determination reflects that, (I) at least in part due to the severity of ischemic heart disease, the Veteran was precluded from working for at least twelve continuous months, and (II) that he remained disabled at least through the date of this determination.  See Holland v. Brown, 6 Vet. App. 443, 448 (1994); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (SSA decisions are "pertinent" to the determination of a Veteran's ability to engage in substantially gainful employment).  Thus, although not bound by a SSA determination, the Board finds that this February 2005 administrative determination, when considered with all other evidence of record, provides highly probative evidence that the Veteran is rendered unemployable due to service-connected cardiac disability.  See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Collier, supra.  

Conversely, to the extent the July 2010 VA examiner provides an opinion that the Veteran's service-connected disabilities were not severe enough to render him unemployable, prior to July 2007, the Board finds the opinion to be of limited if any probative value.  Significantly, the basis for this finding does not reflect adequate consideration of the Veteran's competent and credible account of symptomatology and relies largely, if not entirely on medical evidence, or the lack thereof.  See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan, 451 F.3d at 1336.  The Board notes that the examiner does not reconcile physical findings verses the Veteran's lay statements concerning his associated symptoms.  Moreover, to this extent, the examiner's opinion is contrary to multiple medical examinations performed prior to July 2007, the examiner neglected to provide any reasoning or logic to support the apparent inconsistent conclusion.  These deficiencies render the logic and reasoning provided to support the opinion incomplete, and the Board accords the opinion no probative value.  Addison v.  Brown, 6 Vet. App. 405, 407 (1994).  Thus, from February 2, 2001, to June 10, 2007, the Board finds the most probative evidence of record establishes the Veteran's entitlement to a TDIU based on his service-connected cardiac disability, including hypertension.  


ORDER

A TDIU rating from February 2, 2001 to June 10, 2007 is granted.


REMAND

As noted above, the Board has granted a TDIU effective from February 2, 2001 to June 10, 2007 and the RO has previously granted a TDIU from June 11, 2007 to December 7, 2007.  The RO denied a TDIU effective from December 8, 2007 because the Veteran was granted a 100 percent schedular rating for the service-connected coronary artery disease associated with hypertension, effective from December 8, 2007.

The Board notes that the assigned 100 percent rating for the service-connected cardiac disability does not as a matter of law preclude entitlement to a TDIU based on other service-connected disability(ies).  See Buie v. Shinseki, 24 Vet. App. 242, 205 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  The Veteran's service-connected disabilities other than coronary artery disease and hypertension includes scar, residuals of excision of pilonidal cyst and peripheral vascular disease of the left and right lower extremities.  Each of these disabilities is noncompensably rated.  As noted in the introduction, however, the Veteran has raised a claim of service connection for a psychiatric disability.  The RO has not adjudicated this issue and this issue is inextricably intertwined with the claim as to whether a TDIU rating is warranted effective from December 8, 2007 due to service-connected disability other than the service-connected coronary artery disease and hypertension.  In order to address this, the claim of service-connection for a psychiatric disability must be adjudicated, as a grant of this claim and any assigned rating may have an impact as to whether a TDIU rating is warranted effective from December 8, 2007.

Accordingly, the case is REMANDED for the following action:

1.  Adjudicate the claim of service connection for a psychiatric disorder.

2.  Thereafter, adjudicate the claim for a TDIU rating effective from December 8, 2007.  If the decision is adverse, send the Veteran an appropriate supplemental statement of the case and give him and his representative an appropriate period of time to respond.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2011).




____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs