Citation Nr: 1305801 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 09-30 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a higher initial schedular rating for coronary artery disease with left ventricle hypertrophy, status post myocardial infarction, and stent placement, rated noncompensably prior to April 15, 2009, 100 percent from April 15 through October 31, 2009, 10 percent from November 1, 2009, through February 8, 2010, and 30 percent on February 9, 2010. 2. Entitlement to a total disability rating based on individual unemployability prior to February 18, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active naval service from November 1977 to November 2007. This appeal arises to the Board of Veterans' Appeals (Board) from February 2009 and later rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A February 2009 rating decision, in pertinent part, granted service connection for a heart-related disability then characterized as "heart murmur with chest pain." The RO assigned a noncompensable disability rating effective from the day after retirement from active service, that is, December 1, 2007. The Veteran filed a notice of disagreement (hereinafter: NOD) with the noncompensable rating in April 2009. Thereafter, in August 2009, the RO issued a rating decision that re-characterized the service-connected heart disability as coronary artery disease, status post myocardial infarction, with stent placement. The RO assigned a temporary total (100 percent) rating effective April 15 through July 14, 2009, and a 10 percent schedular rating effective on July 15, 2009. In November 2009, the RO extended the temporary total rating through October 31 and assigned a 10 percent rating effective November 1, 2009. In February and March 2010 rating decisions, the RO continued the 10 percent rating for the heart disability. In October 2010, the RO re-characterized the disability as coronary artery disease with left ventricle hypertrophy, status post myocardial infarction with stent placement, and assigned a 30 percent schedular rating effective February 9, 2010. The Veteran's substantive appeal contains a request for a hearing before a Veteran's law judge. In September 2011, the Veteran withdrew his hearing request. The United States Court of Appeals for Veterans Claims (Court) determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran has claimed that cardiac insufficiency precludes working. The RO has granted TDIU effective February 18, 2010, which does not include the entire appeal period. Although the Veteran has not disagreed with the TDIU effective date, the Board must consider TDIU coincident to the initial heart disability rating. Therefore, the Board has added a TDIU claim for the earlier portion of the appeal period to page 1. Further development is needed to properly adjudicate the TDIU claim. Entitlement to TDIU prior to February 18, 2010, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence contains facts that demonstrate distinct time periods in which the service-connected heart disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. 2. Prior to April 15, 2009, the service-connected heart disability was manifested by a physician's estimate that a workload of greater than 7 METs but not greater than 10 METs would result in dyspnea, fatigue, angina, dizziness, or syncope. 3. From November 1, 2009, service-connected heart disability has been manifested by left ventricle hypertrophy, measured by perfusion stress testing. 4. At no time has sustained ventricular arrhythmia, ventricular aneurysmectomy, or use of an automatic implantable Cardioverter-Defibrillator (AICD) been shown. CONCLUSIONS OF LAW 1. Prior to April 15, 2009, the criteria for a 10 percent schedular rating for a service-connected heart disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.31, 4.100, 4.104, Diagnostic Code 7011 (2012). 2. From November 1, 2009, the criteria for a 30 percent schedular rating, and no higher, for a service-connected heart disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.31, 4.100, 4.104, Diagnostic Codes 7005, 7006, 7011 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim for a higher initial rating for a heart disability, the NOD as to the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, an appeal for a higher initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these guidelines, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in a statement of the case (hereinafter: SOC) and in notice letters sent to the claimant in December 2009 and later. The SOC provided the claimant with the relevant rating criteria for disabilities of the spine, as listed at various diagnostic codes. The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings for a low back disability. Thus, VA's duties to notify the claimant under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private treatment reports. The claimant was afforded several medical examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the United States Court of Appeals for Veterans Claims (Court) distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. In Hart v. Mansfield, 21 Vet. App. 505, 510 (2007), the Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The service-connected heart disability has enjoyed staged ratings during the rating period. These staged ratings became necessary because a myocardial infarction (called also a heart attack) occurred during the appeal period on April 15, 2009 (which triggered the assignment of a temporary total rating during the appeal period). Following hospitalization and recovery, the temporary total rating was terminated on October 31, 2009. Because several cardiac disabilities are now service-connected, more than one diagnostic code will be considered. The only caveat to considering more than one diagnostic code is that the "rule-against-pyramiding" must not be violated. The rule requires that both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (permitting separate evaluations for separate problems arising from the same injury if they do not constitute the same disability or same manifestation under 38 C.F.R. § 4.14). Disability Rating for the Period Prior to April 15, 2009 Prior to the Veteran's myocardial infarction, which occurred on April 15, 2009, the RO had rated that heart disability noncompensably under 38 C.F.R. § 4.104, Diagnostic Code 7011 (2012). Under Diagnostic Code 7011: A 10 percent rating is warranted for sustained ventricular arrhythmias where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where continuous medication is required. A 30 percent rating is warranted for sustained ventricular arrhythmias where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where there has been more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for (1) indefinite period from date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator (AICD) in place or (2) chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7011 (2012). The rating schedule does not provide a zero percent rating under Diagnostic Code 7011. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 38 C.F.R. § 4.104 further provides that where a laboratory determination of METs (metabolic equivalents) by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METS and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Use of Diagnostic Code 7011 also requires consideration of some additional guidance found at 38 C.F.R. § 4.100 (2012). 38 C.F.R. § 4.100 provides that, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication; even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, metabolic equivalents (METs) testing is required unless: (1) it is medically contra-indicated); or, (2) when left ventricle ejection fraction is measured and is 50 percent or less; or (3) when congestive heart failure is present or there has been more than one episode of congestive heart failure in the last year; or, (4) when a 100 percent rating can be assigned on another basis. If left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability. An October 2008 VA heart disease compensation examination report reflects that the Veteran was not taking any medication for angina, chest pain, or cardiac conditions. The Veteran denied leg swelling, shortness of breath, othopnea, syncope, or dyspnea. Cardiomegaly was not shown. The physician offered a diagnosis of mild right ventricular conduction delay, per in-service electrocardiogram (ECG or EKG), but noted that the Veteran had no current symptoms. A diagnosis of hyperlipidemia was also given. A current EKG was normal. On two-dimensional echocardiogram, the left ventricle ejection fraction was 65 percent and the METS were estimated at 10. Concerning the METS estimate, the examiner did not explain why exercise testing could not be performed, nor did the physician support the estimated METS by the use of a specific example, such as stair climbing. Regardless, these shortcomings do not change the METS estimate of 10. The benefit of the doubt doctrine, set forth at 38 U.S.C. 5701, will be applied to the shortcomings found in the examination report. Comparing the rating criteria of Diagnostic Code 7011 to the estimated METS level, it is clear that the criteria for a 10 percent rating are more nearly approximated. This is because the estimated Mets is at least 7 but not greater than 10. Thus, under Diagnostic Code 7011, the heart disability warrants a 10 percent rating for this earliest rating period. Next for consideration is whether a rating greater than 10 percent is warranted under another diagnostic code, such as Diagnostic Code 7005. While coronary artery disease was not offered as a diagnosis in October 2008, on April 15, 2009, the Veteran had a myocardial infarction. Cardiac catheterization diagnostics revealed a 100 percent occluded coronary artery. The RO then established service connection for coronary artery disease. The next question is whether, prior to April 15, 2009, a rating under Diagnostic Code 7005, Coronary Artery Disease, or Diagnostic Code 7006, Myocardial infarction, is warranted. The rating schedule provides the following: A 100 percent rating is warranted when there is documented coronary artery disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is left ventricular dysfunction with an ejection fraction of less than 30 percent. A 60 percent rating is warranted when there is documented coronary artery disease resulting in more than one episode of acute congestive heart failure in the past year; or, workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 30 percent rating is warranted when there is documented coronary artery disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where continuous medication is required. 38 C.F.R. § 4.104, Diagnostic Codes 7005, 7006 (2012). Although the estimated METS level of 10 supports a 10 percent rating under Diagnostic Codes 7005, 7006, and/or 7011, it cannot be assigned more than once, as it constitutes the same manifestation under all three codes. Because no cardiac symptom, other than a physician's estimate of 10 METS, was shown, the Board concludes that for the rating period prior to April 15, 2009, the service-connected heart disability is manifested by a physician's estimate that workloads of greater than 7 METs but not greater than 10 METs would result in dyspnea, fatigue, angina, dizziness, or syncope. A 10 percent schedular rating must therefore be granted for the earliest portion of the appeal period. As noted in the Introduction, a temporary total rating has been assigned from April 15 through October 31, 2009. Because the maximum benefit has already been granted for that period, the Board need not further address that period. Disability Rating from November 1, 2009, through February 8, 2010. Coronary artery disease led to a myocardial infarction on April 15, 2009. The Veteran underwent immediate VA hospitalization and coronary artery stent placement. The RO then granted a temporary 100 percent rating from April 15 through October 31, 2009, and then granted a 10 percent rating under Diagnostic Code 7005-7006 for the period from November 1, 2009, through February 8, 2010. Pertinent clinical records during the rating period from November 1, 2009, through February 8, 2010, include an October 2009 letter from private physician, A. Johnson, M.D., that notes a history of hypertension and hyperlipidemia. Also in October 2009, the Veteran sent a formal letter of resignation to his employer. He stated that due to health concerns he would not return to work. In a December 2009 letter, Dr. Johnson reported that the Veteran should not return to work, as he remained at "very high risk" for myocardial infarction, stroke, and renal failure. The Veteran submitted this letter to the RO in December 2009 and requested that his temporary total rating for convalescence be extended. In another December 2009 letter to the RO, the Veteran requested TDIU and submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. In February 2010, the RO issued a rating decision that deferred the TDIU claim, denied an extension of the temporary total rating, and continued a 10 percent rating for the heart disability. A March 2010 VA compensation examination report reflects that the Veteran underwent a myocardial perfusion stress test on February 9, 2010, and those results showed moderate cardiovascular disease and a METS of 10.1. Left ventricle enlargement was seen. Left ventricle ejection fraction was 57 percent. The examiner stated that the Veteran had no hypertension, but also stated (confusingly) that the Veteran takes medication to control hypertension and that his blood pressure is "under fairly good control." The relevant diagnoses were coronary artery disease; status post angioplasty and stent placement; stable, no angina; taking medication regularly and followed by his doctors; and, his recent estimated METS on stress testing was 10.1. In a March 2010 rating decision, the RO continued a 10 percent rating for the heart disability. A private cardiac catheterization and left ventriculography in April 2010 revealed a left ventricle ejection fraction of 60 percent. In October 2010, the RO granted a 30 percent rating under Diagnostic Codes 7005-7006 for the heart disability, effective February 9, 2010, based on a February 9, 2010, VA heart evaluation that detected left ventricle hypertrophy. For the period from November 1, 2009, through February 8, 2010, the service-connected heart disability was manifested by left ventricle hypertrophy detected on perfusion stress testing. This meets the criteria for a 30 percent schedular rating under Diagnostic Code 7005, 7006, and/or 7011. For the rating period from November 1, 2009, through February 8, 2010, the criteria for a 30 percent schedular rating are more nearly approximated on the basis of left ventricle hypertrophy and a 30 percent schedular rating shall therefore be granted. Disability Rating from February 9, 2010 Because the RO has already rated the heart disability 30 percent disabling under Diagnostic Codes 7005-7006 effective February 9, 2010, the only inquiry for this final rating period is whether the criteria for a rating greater than 30 percent are more nearly approximated. As noted above, the next higher schedular rating, 60 percent, is warranted where there is documented coronary artery disease resulting in more than one episode of acute congestive heart failure in the past year; or, workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent. (Diagnostic Codes 7005, 7006, 7011). None of these manifestations are shown during this rating period. Also for consideration is a 100 percent rating under Diagnostic Code 7011, based on other criteria. A 100 percent rating may be assigned under Diagnostic Code 7011 for an indefinite period from date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator (AICD) in place. Neither sustained ventricular arrhythmia, nor ventricular aneurysmectomy, nor use of an AICD is shown in this case. Therefore, according to the above facts, from February 9, 2010, no manifestation that could warrant a 60 percent or greater schedular rating is shown. The medical opinions discussed above are persuasive, as they are based on accurate facts and are supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Lay statements are competent evidence with regard to descriptions of symptoms of disease or disability. Where lay evidence is used to establish a diagnosis or etiology, its persuasive value is conditional. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In this case, the Veteran's lay report of increased disability is supported by medical evidence. Thus, the lay evidence may be afforded some weight in the matter. The evidence does reveal distinct time periods (such as date of heart attack, date of stent placement, and date that temporary total convalescence rating ended) in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. Therefore, it is necessary to assign staged ratings. Hart, 21 Vet. App. at 510. Moreover, because the RO has already assigned staged ratings, has issued an SOC addressing them, and has offered the Veteran opportunity for a hearing on the matter, no unfair prejudice to the Veteran arises from the Board's assignment of staged ratings in the case. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for a schedular disability rating greater than 30 percent for a heart disability for that period beginning February 9, 2010, is therefore denied. Extra-schedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate, or where the evidence shows exceptional or unusual circumstances, the Board must consider an extra-schedular rating. If there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id, at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. In Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. The Veteran has alleged that his heart disability precludes all employment. The established rating criteria, when applied to his cardiac-related symptom, do not warrant a schedular disability rating greater than 30 percent. Therefore: (1) the established schedular criteria are inadequate to address the severity (or claimed severity in this case) of the heart disability; (2) In a December 2009-dated letter, Dr. Johnson reported that the Veteran should not return to work, as he remained at "very high risk" for myocardial infarction, among other disabilities. Because a private physician agrees that the heart disability precludes employment, an exceptional or unusual disability picture, such as marked interference with employment, has been presented. Finally, because the first two prongs are met, so is the third. That is, the award of an extra-schedular disability rating appears to be in the interest of justice. The Board must therefore forward to case to the Director, Compensation and Pension Service for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (the Board must forward the extra-schedular rating claim to those "...officials who possess the delegated authority to assign such a rating in the first instance,"). The issue is addressed further in the REMAND portion of the decision. ORDER Prior to April 15, 2009, a 10 percent schedular rating for a service-connected heart disability is granted, subject to the laws and regulations governing payment of monetary benefits. From November 1, 2009, a 30 percent schedular rating, and no higher, for a service-connected heart disability is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND The Veteran seeks TDIU. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). For a portion of the appeal period, a 100 percent temporary total rating has already been assigned. This does not prohibit consideration of TDIU for any portion of the appeal period, as a 100 percent schedular rating and a TDIU rating may run concurrently and simultaneously. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court rejected VA's rationale for concluding that a 100 percent schedular rating must subsume a TDIU rating. The Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. Because of this holding, VA's General Counsel has withdrawn VA O.G.C. Prec. Op. No. 6-99, which is contrary to the holding of Bradley. See 75 Fed. Reg. 11230 (March 10, 2010). Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should develop the TDIU claim as necessary. This includes offering an appropriate examination to determine whether it is at least as likely as not (50 percent or greater possibility) that all service-connected disabilities preclude securing and following a substantially gainful occupation. Following development and adjudication of the TDIU claim, if the benefit is not granted, the AMC should submit it to the Director, Compensation and Pension Service, for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b) and § 3.321 (b). 2. Following the above, the AMC should review all the relevant evidence and re-adjudicate the TDIU claim. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). If an examination is scheduled, failure to report for a scheduled examination, without good cause, may result in adverse consequences on the claim for benefits. 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the 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. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs