Citation Nr: 1128974 Decision Date: 08/05/11 Archive Date: 08/11/11 DOCKET NO. 08-36 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 30 percent for rheumatic heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from August 1946 to January 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2010, the Veteran testified before a Veterans Law Judge, seated at the RO. A written transcript has been made of that hearing and it has been associated with the claims file. This appeal was previously remanded by the Board in July 2010. It has now been returned to the Board for adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 a disability rating in excess of 30 percent for his service-connected rheumatic heart disease. In the Board's prior July 2010 remand order, a VA medical examiner was requested to examine the Veteran and address certain specific questions, to include providing an estimated METs (metabolic equivalent units) level based on the Veteran's service-connected disability alone. Such an examination was afforded the Veteran in November 2010, at which time a VA physician, Dr. K.J.W., M.D., stated that along with his service-connected rheumatic heart disease, the Veteran also had a concurrent but unrelated diagnosis of hypertension. Hypertension and its complications resulted in a METs level of 3, according to the examiner, but the Veteran's rheumatic heart disease, in and of itself, resulted in "no limitations in METs level." The Board observes that the Veteran has not been granted service connection for hypertension or any other cardiovascular disability. Based on these examination findings, the RO denied the Veteran a disability rating in excess of 30 percent for his rheumatic heart disease. Subsequently, the Veteran submitted 2011 treatment records from his VA primary care physician, Dr. D.J.F., D.O. In a February 2011 statement, Dr. F. indicated that the Veteran displayed several current cardiovascular complications, including cardiomegaly and arteriosclerotic calcification and other changes in the thoracic aorta and other coronary vessels. These complications were, in the opinion of the examiner, "at least as likely as not . . . related to rheumatic heart disease" and should be considered in assessing the Veteran's level of impairment resulting therein. Finally, the Board notes that subsequent to the most recent supplemental statement of the case, issued in November 2010, the Veteran has submitted the aforementioned 2011 VA treatment records and medical opinion statement. Such evidence was received without a waiver of consideration by the RO, the agency of original jurisdiction. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. As the Veteran has not waived consideration of this evidence by the RO, and the Board may not consider it in the first instance, this issue must be remanded to the RO for such consideration. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Forward the claims file to a VA medical expert in cardiovascular disabilities to provide a medical opinion regarding the functional impairment resulting from the Veteran's rheumatic heart disease. If available, the examiner who examined the Veteran in November 2010 should be requested to provide this opinion. The Veteran need not be scheduled for personal examination unless such examination is determined by the examiner to be necessary to comply with this remand. After reviewing the claims file, the examiner is requested to address the 2011 VA medical treatment records, to include the February 2011 addendum and opinion provided by Dr. F. Specifically, the examiner is requested to state whether it is at least as likely as not that the Veteran's service-connected rheumatic heart disease either causes or aggravates any other current cardiovascular disabilities. The examiner is also asked to provide an estimated METs level based on the Veteran's rheumatic heart disease alone. The medical rationale for all opinions expressed must be provided. If the examiner is unable to address any questions within this remand without resort to speculation, the examiner should so state for the record, to include an explanation of why such questions cannot be answered. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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 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. 2010). _________________________________________________ JAMES L. MARCH 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) (2010).