Citation Nr: 1102425 Decision Date: 01/21/11 Archive Date: 01/26/11 DOCKET NO. 06-08 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an increased rating for coronary atherosclerosis with coronary artery disease and status post cardiac pacemaker implant, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Theresa M. Catino, Senior Counsel INTRODUCTION The Veteran served on active duty from March 1968 to February 1970. He was awarded the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating action in which the Department of Veterans Affairs Regional Office (RO) in St. Paul, Minnesota continued a 10 percent evaluation for the service-connected coronary atherosclerosis with coronary artery disease. Thereafter, by a November 2005 rating action, the RO awarded a temporary total evaluation based on surgical or other treatment necessitating convalescence, effective from August 31, 2005, and confirmed the 10 percent rating, effective from November 1, 2005. The Veteran perfected a timely appeal with respect to the denial of his increased rating claim. During the current appeal, and specifically by a January 2006 rating action, the RO recharacterized the Veteran's service- connected cardiovascular disorder as coronary atherosclerosis with coronary artery disease and status post cardiac pacemaker implant and awarded an increased evaluation of 30 percent, effective from November 1, 2005, for this disability. As the highest schedular rating allowable has not been awarded, and as the Veteran has not expressed agreement with the 30 percent evaluation awarded for his service-connected cardiovascular disorder, his increased rating claim for this disability remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Review of the claims folder indicates that the Veteran was last accorded a VA cardiovascular examination in January 2006. According to the report of the evaluation, the Veteran was determined to have a workload capacity equivalent to "six, possibly seven" metabolic equivalent testing units (METs) and a normal ejection fraction of 63%. A report of a VA outpatient treatment session conducted in April 2006 reflects the Veteran's dizziness, lightheadedness, and shortness of breath. Unfortunately, the claims folder contains no records of subsequent treatment for, or evaluation of, the Veteran's service-connected coronary atherosclerosis with coronary artery disease and status post cardiac pacemaker implant. In light of the absence of records of treatment for, or evaluation of, the Veteran's service-connected cardiovascular disorder within essentially the past five years, the Board finds that a remand of his increased rating claim is necessary. The purpose of the remand is to accord him a contemporaneous medical examination. See e.g. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of duty to assist requires contemporaneous medical examination, particularly if there is no additional medical evidence which adequately addresses the level of impairment since previous examination). See also Green v. Brown, 10 Vet. App. 111 (1997) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) & Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Additionally, the record reflects that the Veteran has received both private and VA cardiovascular treatment. As previously stated herein, the claims folder contains no records of such medical care any later than 2006. On remand, therefore, records of ongoing private and VA cardiovascular treatment should be obtained. See, e.g., 38 U.S.C.A. § 5103A(c) (West 2002) & Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information form, procure copies of the records of cardiovascular treatment that the Veteran may have received from Dr. John Stock since February 2006. Associate all such available records with the claims folder. If any such documents are not available, that fact should be noted in the claims file. 2. Also, obtain copies of records of cardiovascular treatment that the Veteran may have received at the Fargo VA Medical Center, including the clinic in Fergus Falls, since April 2006. Associate all such available records with the Veteran's claims folder. If any such documents are not available, that fact should be noted in the claims file. 3. Then, schedule the Veteran for an appropriate VA examination to determine the current nature and extent of his service-connected coronary atherosclerosis with coronary artery disease and status post cardiac pacemaker implant. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. Any testing deemed necessary should be performed. All pertinent pathology associated with this service-connected disability should be noted in the examination report. In particular, the examiner should discuss the presence (including frequency) or absence of: chronic congestive heart failure; episodes of acute congestive heart failure in the past year; workload in METs; left ventricular dysfunction (including the percentage of ejection fraction); and any associated dyspnea, fatigue, angina, dizziness, or syncope. In addition, the examiner should address the impact of the service-connected coronary atherosclerosis with coronary artery disease and status post cardiac pacemaker implant on the Veteran's occupational functioning (regardless of his age). A complete rationale for all opinions expressed must be provided. 4. Following completion of the above, re-adjudicate the issue of entitlement to a disability rating greater than 30 percent for the service-connected coronary atherosclerosis with coronary artery disease and status post cardiac pacemaker implant. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to this issue as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2009). He has the right to submit additional evidence and argument on the matter that 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 or by the United States Court of Appeals (CONTINUED ON NEXT PAGE) for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2010).