Citation Nr: 0124599 Decision Date: 10/12/01 Archive Date: 10/18/01 DOCKET NO. 96-10 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for residuals of a myocardial infarction, currently rated 60 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from April 1966 to October 1966. His appeal initially came before the Board of Veterans' Appeals (Board) from a June 1995 rating decision by the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO), which granted service connection and a 30 percent evaluation for status post myocardial infarction. The claim was remanded by the Board in November 1997 for additional development. A January 1999 Board decision granted a 60 percent evaluation for the status post myocardial infarction. In a December 1999 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand by the appellant and VA regarding the Board's denial of an evaluation greater than 60 percent for the status post myocardial infarction, and vacated that portion of the Board's January 1999 decision. Thereafter, the Board requested an independent medical expert (IME) opinion in December 2000. Following receipt of the February 2001 IME opinion, the appellant submitted a March 2001 private medical opinion in support of his claim for an increased rating for his residuals of a myocardial infarction. REMAND Of record is a discharge summary from the Memphis, Tennessee, VA hospital with regard to the appellant's period of hospitalization from April to June 1998, where he received treatment from the Spinal Cord Injury Service. In addition to documenting right hip adductor tenotomy for ulcers, the summary noted that a thallium exercise test showed a left ventricular ejection fraction which appeared to be normal, mild ischemia of the mid and proximal septal segments of the anterior wall, and an inferior wall scar. It was also reported that cardiovascular consultation was obtained and that the appellant underwent cardiac catheterization. A June 2, 1998, report of a VA heart examination, performed during the appellant's period of hospitalization, indicated that the appellant was an inpatient at the Memphis, Tennessee, VA hospital, receiving treatment from the Spinal Cord Injury Service, and that he had undergone cardiology evaluation as part of the hospitalization for pre-op evaluation for some tendon surgery that had been performed. The examiner stated that as a part of the cardiology evaluation a dipyridamole Sestamibi study had been performed, which had indicated the presence of an old inferior myocardial infarction and ischemia of the mid and proximal segments of the anterior wall. In his February 2001 IME opinion, W. J. Groh, M.D., stated that the dipyridamole Sestamibi study referenced in the June 2, 1998, VA heart examination report was not available for review. He indicated that the reported findings in that study were different from earlier cardiac findings in 1996, thereby presenting discrepant medical tests results that raised the question of whether or not the appellant's symptoms (chest pain) were, in fact, related to coronary artery disease. Dr. Groh stated that he would be happy to review the objective results from the June 1998 cardiology evaluation. In the March 2001 private medical statement, C. N. Bash, M.D., referenced the June 2, 1998, dipyridamole Sestamibi study in support of his opinion that the appellant's limitation of activity (METs) and angina was due to his service-connected 1980 myocardial infarction. The Board also notes that the appellant filed a claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities in April 1999 (VA Form 21-8940). After a June 1999 rating decision denied the appellant's claim for unemployability benefits, the appellant expressed his disagreement with the RO's denial of that claim in a September 1999 statement. Review of the claims file does not show that a Statement of the Case (SOC) has been issued to the appellant with regard to the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. The Board has jurisdiction over appeals involving benefits under the laws administered by VA. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. In Malincon v. West, 12 Vet. App. 238 (1999), however, the United States Court of Appeals for Veterans Claims (Court) has held that where there is an adjudicative determination and a notice of disagreement, the notice of disagreement initiated review by the Board and bestowed jurisdiction of the Court over the matter; and that, notwithstanding the absence of an SOC or a substantive appeal, the Board must remand the case for issuance of an SOC. Accordingly, this case is REMANDED for the following actions: 1. The RO should contact the VA hospital in Memphis, Tennessee, for the purpose of obtaining all of the clinical records pertaining to the appellant's period of hospitalization there from April to June 1998. All records received should be associated with the claims file. 2. The appellant and his representative should be provided with an SOC regarding the issue of entitlement to a total disability rating based on individual unemployability due to service- connected disabilities. The appellant should be informed that the appeal of the issue pertaining to unemployability benefits will be returned to the Board following the issuance of the SOC only if that claim is perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The SOC must contain notice of all relevant actions taken on the claim for unemployability benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response. 3. The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act are fully complied with and satisfied. For further guidance on the processing of this case in light of the changes in the law, the RO should refer to any pertinent formal or informal guidance that is subsequently provided by the Department, including, among others things, final regulations and General Counsel precedent opinions. Any binding and pertinent court decisions that are subsequently issued also should be considered. The Board expresses its appreciation in advance to the RO for its assistance in developing the requested evidence and trusts that this development will be attended to in an expeditious manner as mandated by 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. 1998) (Historical and Statutory Notes) and VBA's Adjudication Procedure Manual, M21-1, Part IV. The appellant 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). If, after the above requested actions have been completed, the benefits sought on appeal remain denied, the appellant and his representative should be furnished a Supplemental Statement of the Case (SSOC), and they should be afforded the appropriate period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant receives his due process rights. No opinion, either legal or factual, is intimated by this REMAND, and the appellant is not required to undertake any additional action until he receives further notification from VA. M. W. GREENSTREET Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).