Citation Nr: 0811794 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 03-25 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for hypertension. 2. Entitlement to an evaluation in excess of 30 percent for coronary artery disease. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from November 1971 to February 1976. This matter comes to the Board of Veterans' Appeals (Board) from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied entitlement to an increased rating for coronary artery disease and assigned a separate 20 percent rating for hypertension, effective October 1, 2001. The RO initially awarded service connection for hypertension and assigned a 10 percent rating in 1976. In 1989 the RO recharacterized the issue as coronary artery disease with hypertension, assigning a 30 percent rating. The August 2002 rating decision for the first time treated coronary disease and hypertension as two separate disabilities with two separate ratings; of 30 and 20 percent, respectively. On his October 2001 increased rating claim, the veteran noted that he had previously been rated in June 1978 as 10 percent disabled for a nerves condition that no longer appeared on the rating sheets. A June 1978 VA letter, in error, notes that the veteran is rated as 10 percent disabled for nerves, instead of hypertension. VA notified the veteran of this error in November 1994 after he had submitted multiple statements asking why his 10 percent rating for nerves had been removed. As there still appears to be some confusion, this matter is referred to the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks an increased rating for coronary artery disease, which is currently rated as 30 percent disabling, and hypertension, which is currently rated as 20 percent disabling. The only notice letter of record addressing the increased rating claims for coronary artery disease and hypertension incorrectly advised the veteran that his previous claim for increase had been denied and he needed to submit new and material evidence. This error cannot be rebutted. In Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008), the U.S. Court of Appeals for Veterans Claims highlighted additional notice requirements for increased rating claims, particularly notice that the veteran should submit evidence demonstrating a worsening of disability and the effect the worsening has on the veteran's employment and every day life; and if the veteran's disability is the type that an increased rating would not be substantiated by him generally demonstrating a worsening in disability, a copy of the rating criteria used to rate the disability. Thus, the proper notice letter should be provided to the veteran, addressing all the criteria for an increased rating claim. The last VA examination was provided in November 2005. Significantly, the veteran was shown to have estimated metabolic equivalents (multiples of resting oxygen uptake) (METs) of 4 to 5, which would warrant a 60 percent evaluation for coronary artery disease under 38 C.F.R. § 4.104, Diagnostic Code 7005. The report also showed three diastolic blood pressure readings of 120, which would warrant a 40 percent rating under 38 C.F.R. § 4.104, Diagnostic Code 7101 for hypertension. The veteran submitted private emergency room records dated from December 2006 to February 2007 that show he overdosed on medication and had a possible transient ischemic attack. The reports note a moderately abnormal electrocardiogram and that the veteran's hypertension was uncontrolled at discharge in February 2007. As the veteran has submitted evidence of a worsening in his condition since his November 2005 VA examination, he should be provided another VA examination to determine the present level of severity for his coronary artery disease and hypertension. See VAOPGCPREC 11-95 (1995); see also Caffrey v. Brown, 6 Vet. App. 377 (1995). Accordingly, the case is REMANDED for the following action: 1. Send the veteran a VA notice letter that satisfies Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) regarding his increased rating claims for coronary artery disease and hypertension. Specifically, the letter should include the following: (a) Notice that the veteran should submit or ask VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life. (b) Copies of the rating criteria for hypertensive vascular disease (Diagnostic Code 7101) and coronary artery disease (Diagnostic Code 7005). (c) Notice that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. (d) Examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 2. Schedule the veteran for a VA examination by a physician with appropriate expertise to determine the current degree of severity of his service- connected coronary artery disease and hypertension. The veteran should be properly notified of the date, time, and place of the examination in writing. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. (a) The examiner should describe all symptomatology due to the veteran's service-connected hypertension and assess the predominant reading of the veteran's diastolic blood pressure. (b) The examiner should describe all symptomatology due to the veteran's service-connected coronary artery disease. Specifically, the examiner should state the number of episodes of acute congestive heart failure in the past year and whether there is chronic congestive heart failure; the level of estimated metabolic equivalents (multiples of resting oxygen uptake) (METs); whether there is any dyspnea, fatigue, angina, dizziness, or syncope; and whether there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent or less than 30 percent. Any indicated studies, including electrocardiogram (ECG) studies should be performed. A complete rationale for all opinions expressed should be provided. 3. Any additional development deemed appropriate should be accomplished. The claims should then be readjudicated. If the claims remain denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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. 2007). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).