Citation Nr: 0812804 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-03 738A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for status post L4-5 and L5-S1 anterior interbody fusion with chronic low back pain. 2. Entitlement to a rating in excess of 10 percent for service-connected hypertension. 3. Entitlement to a rating in excess of 30 percent for service-connected coronary artery disease. WITNESSES AT HEARING ON APPEAL The veteran and his agent ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from March 1955 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified at a personal hearing before the undersigned Veteran's Law Judge, sitting at the RO in June 2007. A transcript of the hearing is associated with the claims file. While the appeal was pending, a November 2006 Decision Review Officer decision denied a rating in excess of 10 percent for hypertension with mild coronary artery disease, but assigned a separate rating of 30 percent for coronary artery disease, effective January 26, 2004. However, although the veteran has been assigned an additional 30 percent rating for his cardiovascular disability, it is still less than the maximum benefit available; therefore, his appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2008, the veteran submitted a motion to the Board to remove J. L. as his representative with regard to his claims before VA. 38 C.F.R. §§ 20.607, 20.1304 (2007). The motion was granted in April 2008. The veteran has not appointed another representative with regard to his claims. In March 2007, the veteran filed a claim for Meuniere's disease, as secondary to his service-connected bilateral hearing loss and tinnitus. No rating decision has been issued on this claim. Accordingly, the Board refers this claim to the RO for appropriate action. 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 contends that his hypertension and coronary artery disease are more severe than contemplated under the currently assigned ratings. Thus, he argues that ratings in excess of 10 percent for hypertension and 30 percent for a coronary artery disease are warranted. With regard to his back disorder, the veteran contends that the heavy lifting he was required to do as an aircraft mechanic in service resulted in his current back disorder. The Board determines that a remand is required for further development of the record. Initially, the Board notes that there are outstanding, relevant records that VA must attempt to obtain prior to further adjudication. At his hearing, the veteran indicated that he had seen his cardiologist, Dr. M. K., two months before the hearing. The most recent records relevant to cardiovascular treatment are dated in June 2005. Additionally, the veteran has reported that he had been hospitalized for almost a week and put in traction for his back at Eglin AFB Hospital in August 1983. Records of this hospitalization are not associated with the claims file. Therefore, the Board finds a remand necessary to allow VA opportunity to obtain these outstanding, relevant records. With regard to his back disorder, the Board notes that the veteran has argued that the same in-service heavy lifting that resulted in documented bilateral hernias, caused injury to his back. At his hearing, he and his agent testified to the verbal opinions of two private physicians, Dr. C. K. and Dr. V., as to a relationship between his current back disorder and his 20 years of active service as an aircraft mechanic. Testimony reflected that both physicians indicated that the veteran's duties over that period of time could have caused trauma or injury to his back. Although the veteran was afforded a VA examination with regard to his back disorder in October 2006, the Board determines that such evidence is enough indication of a possible in-service injury to the veteran's back to require a remand in order to afford the veteran another VA examination to ascertain the nature and etiology of his current back disorder. Accordingly, the case is REMANDED for the following action: 1. Request records of the veteran's 1983 hospitalization for his back disorder from Eglin AFB Hospital. All requests and responses, positive and negative, should be associated with the claims file. 2. Send the veteran a VA Form 21-4142, Authorization and Consent to Release Information to VA to complete with regard to outstanding records of Dr. M. K. from both his Fort Walton Beach and Crestview, Florida offices. The veteran should also be asked to identify and authorize release of any additional, relevant private treatment records that he has not previously identified. All requests for records and responses, positive and negative, should be associated with the claims file. 3. Once all available, relevant records have been obtained, the veteran should be scheduled for another VA examination to determine the nature and etiology of his current back disorder. The claims file, to include all additional evidence and a copy of this remand, should be made available to the examiner for review, and the report should reflect that such review occurred. All necessary tests and evaluations should be performed. After all clinical and documentary examination is complete, the examiner should respond to the following question: Is it at least as likely as not (50% or greater probability) that the veteran's current back disorder is the result of an in-service incident or injury? The term "as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or aggravation as it is to find against it. A rationale for any opinion advanced should be provided. If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims file. The veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 38 C.F.R. § 3.655 (2007). 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the veteran's claims should be readjudicated, to include all evidence received since the November 2006 supplemental statement of the case. The veteran and his representative should then be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2007). _________________________________________________ MILO H. HAWLEY 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).