Citation Nr: 1228147 Decision Date: 08/15/12 Archive Date: 08/21/12 DOCKET NO. 11-02 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for coronary artery disease. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. He is a recipient of the Purple Heart and Bronze Star Medal with Valor. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that awarded service connection for coronary artery disease and assigned a 10 percent disability rating effective March 25, 2010. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 Board's review of the claims file reveals that further RO action on this appeal is warranted. In January 2011 the Veteran filed a substantive appeal and indicated his wish for a personal hearing at the RO and a Board hearing by live videoconference. In July 2011 the Veteran was afforded a conference with a decision review officer (DRO) at the RO, and in April 2012 was issued a supplemental statement of the case (SSOC). In May 2012, the Veteran's appeal was certified to the Board, but no hearing was scheduled for the Veteran, despite there being no indication in the record of the Veteran withdrawing his request for a Board hearing. Veterans have a right to a hearing before the VA office having original jurisdiction over the claim as well as a right to a hearing before the Board of Veterans' Appeals. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. §§ 3.103(a), (c), 20.700 (2011). While it is possible that the Veteran mistakenly checked the box indicating a desire for a videoconference hearing at that time and intended only to have a hearing with the RO, this must be clarified before the case can move forward. As the Veteran has indicated a wish for a videoconference hearing with a Veterans Law Judge, but no such hearing has yet been conducted, the case must be remanded, the Veteran contacted to confirm that he still desires the hearing, and a hearing scheduled if he so desires it. 38 U.S.C.A. § 7107; 38 C.F.R. §§ 19.76, 20.700, 20.703, 20.704 (2011). Additionally, in May 2012, prior to the RO's certification of the appeal to the Board, the Veteran submitted new evidence to the RO. The Veteran's submission included a statement concerning his recent medical evaluations, a June 2011 cardiac rehabilitation progress report, and a January 2012 medical evaluation from a private physician. While the June 2011 progress report was a duplicate of a document that had already been submitted by the Veteran in July 2011, the January 2012 evaluation constituted new evidence that was never reviewed by the RO before certification to the Board. Evidence received by the agency of original jurisdiction after an appeal has been initiated but prior to the transfer of records to the Board requires review by the agency of original jurisdiction and issuance of an additional SSOC, unless the new evidence is duplicative or irrelevant. 38 C.F.R. § 19.37(a) (2011). As the January 2012 medical evaluation is directly relevant to the Veteran's claim and not duplicative of records already included in the record, this evidence must be considered by the RO/AMC. Furthermore, in July 2011 the Veteran notified VA that he underwent bypass surgery and that since then his health has become considerably worse. Medical records received from the Veteran's private physician indicate that the Veteran had coronary artery bypass surgery in February 2011 and developed atrial fibrillation following the surgery. In the Veteran's May 2012 letter, he indicated that he also now has a lower metabolic equivalent (METs) score than during his VA examination in April 2010 and that he has atrial fibrillation. When a Veteran alleges a material change in symptomatology since his last VA examination, and when the evidence of record no longer accurately reflects the current state of the Veteran's disability, the duty to assist can obligate VA to provide the Veteran with a new VA examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The Veteran should be scheduled for a new VA cardiology examination to determine the current nature and severity of his heart condition. As the Veteran's statements have indicated that he has likely continued receiving treatment for coronary artery disease from his private physician, relevant ongoing medical records should also be requested and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159 (2011). The RO/AMC should request that the Veteran provide any relevant records since July 2011 or necessary releases to request such records. Finally, although a total disability rating based on unemployability (TDIU) was denied in the December 2010 rating decision and was not appealed, in a July 2011 statement, the Veteran stated that as of his February 2011 heart surgery, he lost his unemployment compensation because he was no longer able and ready to work. Such statement appears to raise a new request for a TDIU. Such matter should be considered in conjunction with his appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to clarify whether he still desires a Board hearing. If the Veteran answers in the affirmative, such hearing should be scheduled to occur after the development requested below has been completed. Ensure that the notice scheduling the hearing is associated with the claims folder. 2. Send the Veteran notice in accordance with the Veterans Claims Assistance Act (VCAA) advising him of the information and evidence necessary to establish entitlement to a total disability rating based on unemployability (TDIU) due to his heart condition. Include a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, for the Veteran to complete to obtain updated employment information. 3. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for his heart condition since July 2011. After securing the necessary release, the RO/AMC should request the relevant records that are identified, which are not duplicates of those already contained in the claims file. If any requested records are not available, the Veteran should be notified of such. 4. After all records and/or responses received have been associated with the claims file, schedule the Veteran for a VA heart examination. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. The examination should include all tests deemed necessary (i.e. stress test, echocardiogram, and/or) electrocardiogram) unless such testing is medically contraindicated or such testing has been done within the past year, the results are of record, and there is no indication that there has been a change in the cardiac status of the Veteran since. If any tests are deemed unnecessary or are medically contraindicated, the examiner should state such. Following review of the claims file and examination of the Veteran, the examiner should address the Veteran's current METs workload and whether symptoms of dyspnea, fatigue, angina, dizziness, and syncope are present. If there is left ventricular dysfunction provide the ejection fraction. The examiner should also provide an opinion on whether the Veteran's heart condition prevents him from obtaining or maintaining gainful employment, without regard to age or nonservice-connected disability. 5. Following completion of the above and any additional development deemed necessary, review the evidence and readjudicate the Veteran's claim for coronary artery disease, to include the question of whether a TDIU based on his heart condition is warranted. If the benefits sought on appeal remain denied, the Veteran should be furnished with an additional SSOC that includes the regulations for a TDIU and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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. 2011). _________________________________________________ K. A. BANFIELD 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) (2011).