Citation Nr: 1018522 Decision Date: 05/19/10 Archive Date: 06/04/10 DOCKET NO. 08-08 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an increased rating for cardiovascular disease, evaluated at 30 percent disabling prior to June 20, 2007, and at 60 percent disabling thereafter. 3. Entitlement to a total rating based on individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from February 1962 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of December 2006 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned at a hearing in July 2009. A transcript of the hearing is of record. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35, 38 (1992). The Veteran was awarded an increased evaluation of 60 percent for his service-connected cardiovascular disease during the pendency of the claim. (August 2007 rating decision.) The Veteran has not suggested that this increased evaluation would satisfy his appeal for a higher evaluation of his disability. Nor has he or his representative otherwise suggested that the maximum rating available for that disability is not being sought. Therefore the Board concludes that the issue of entitlement to a higher rating for cardiovascular disease remains before the Board. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2009). The Veteran testified that he was first diagnosed and treated for hypertension in either 1966 or 1967 at the East Orange, New Jersey VA Medical Center (VAMC). The earliest East Orange VAMC treatment records in the claims file are dated from 1989. In March 2008, the East Orange VAMC indicated that no treatment records were found for the time period from January 1981 to September 1989. It does not appear that any attempt was made to locate records earlier than 1981. The Board is mindful that earlier treatment records might not be available. Nevertheless, since there is at least a reasonable possibility that the records exist, the Board finds that a remand is necessary so that an attempt can be made to obtain the records identified by the Veteran at his hearing. With regards to the Veteran's cardiovascular disease, the last VA examination was in November 2007. At his hearing, the Veteran indicated that his disability had increased in severity. Considering that the Veteran has indicated that his disability has worsened, and the fact that the Veteran has not been afforded a comprehensive VA compensation and pension examination to assess the severity of his disability since November 2007, the Board finds that it is necessary to secure an additional examination to ascertain the Veteran's level of disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claims, of failing to so report. See 38 C.F.R. § 3.655 (2009). Turning to the TDIU claim, the Board notes that, because the outcome of the claims for service connection for hypertension and for an increased rating for cardiovascular disease may have a bearing on the issue of entitlement to TDIU, any Board action on the TDIU matter would be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). This also avoids piecemeal adjudication of the claims with common parameters. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Additionally, the Court has held that there is no freestanding claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009). Whether a TDIU rating will be assigned should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected. Id. at 452-453. Therefore, the Board will defer action on this issue. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain VA medical records pertaining to the Veteran from the East Orange, New Jersey VAMC dated prior to 1981. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. If no records can be located, it should be so stated, in writing, for inclusion in the claims folder. 2. Schedule the Veteran for a VA cardiovascular examination. The examiner should review the claims file. The examiner must conduct all necessary tests to ascertain the manifestations, if any, of the Veteran's cardiovascular disease, and provide findings necessary to apply the pertinent rating criteria. The examiner should describe the current status of the Veteran's cardiovascular disease, to include description of all functional incapacity related to the disability. All required testing, including METs testing should be performed, except when medically contraindicated or if the left ventricular fraction is 50 percent or less, or if there is chronic congestive heart failure or there has been one episode of congestive heart failure within the past year. 38 C.F.R. § 4.100 (2009). If testing cannot be done, the examiner should so state and then provide an estimated METs level. Note the percentage of ejection fraction due to any left ventricular dysfunction. A full and complete rationale for all opinions, including the METs level, is required. The examiner should specify what level of activity warrants the assignment of the estimated METs level. The examiner is also requested to comment upon the impact of the Veteran's cardiovascular disease to maintain gainful employment and any limitations upon such. All opinions must be supported by a complete rationale. 3. Thereafter, the AMC should readjudicate the Veteran's claims. If any benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. 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. 2009). _________________________________________________ L.M. BARNARD Acting 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) (2009).