Citation Nr: 1312797 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 05-32 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for autonomic neuropathy, dysautonomia, and bradycardia with pacemaker. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The appellant's representative contends that a remand of this matter is warranted because there has not been substantial compliance with the Board's prior remand directives. Unfortunately, even though remand will result in further delay in the adjudication of the claim, the Board agrees. This matter was remanded in October 2010 and again in April 2012 to ensure that specific medical examination findings were made to properly rate the disability on appeal. In particular, the disability in question, autonomic neuropathy, dysautonomia, and bradycardia with pacemaker, is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7018, pertaining to heart disabilities following implantation of a cardiac pacemaker. That Diagnostic Code provides for a rating based on supraventricular arrhythmias under Diagnostic Code 7010, ventricular arrhythmias under Diagnostic Code 7011, or atrioventricular block under Diagnostic Code 7015. A minimum 10 percent rating is required with a 100 percent rating assigned for the first two months following implantation of the cardiac pacemaker. Ratings based on Diagnostic Code 7011 or 7015 are based on a evaluation following METs testing. METs testing is required in all cases except when there is a medical contraindication or when certain other heart conditions are present that effectively preclude testing by way of METs. 38 C.F.R. § 4.100 (2012). Here, the Veteran underwent VA examination in December 2010. While the examiner provided an estimate of METs, the examination report does not indicate whether actual MET testing was performed. The report does not otherwise explain this discrepancy or explain if MET testing was contraindicated. The Board sought to address this deficiency in an April 2012 remand. In particular, the Board directed that the Veteran undergo another examination. The examiner was directed to provide an exercise stress test, if medically feasible, and calculate the current level of METs. In addition, the examiner was directed to undertake a longitudinal review of the claims folder and estimate the level of METs for the period from 2001 to 2010. A VA examination was conducted in April 2012. While the Veteran underwent diagnostic testing, such as an echocardiogram, it does not appear that the Veteran underwent a current stress test. Rather, the examiner simply referenced a prior test conducted in 2002 which showed a MET level of 6.6. No reference was made to the current MET level, nor was a longitudinal review of the evidence conducted to determine the appropriate MET level over the course of the appeal. A remand by the Board confers on the veteran the right to compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Although VA is required to comply with remand orders, it is substantial compliance, not absolute compliance, that is required. Dyment v. West, 13 Vet. App. 141 (1999). Once VA undertakes the effort to provide an examination when developing a service-connection claim, VA must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination is considered adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Additionally, the opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994); Green v. Derwinski, 1 Vet. App. 121 (1991); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012); Stegall v. West, 11 Vet. App. 268 (1998); Hicks v. Brown, 8 Vet. App. 417 (1995). Because the VA examination was incomplete for rating purposes this matter must be remanded. While this matter is in remand status, the Veteran is invited to clarify whether he wants a hearing with a Veterans Law Judge. In this respect, on his VA Form 9, Appeal to Board of Veterans' Appeals, filed in September 2005, he requested a hearing before a Veterans Law Judge. In an October 2005 letter, the RO advised him of different hearing options that were available to him, to include an in-person hearing or a videoconference hearing. Thereafter, the RO undertook development for other claims. However, it does not appear that a hearing was conducted, nor is it clear if the Veteran still desires a hearing. On remand, the RO should contact the Veteran and clarify whether he still wants a hearing with the Board. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him if he wants a hearing with a Veterans Law Judge. If he wants a hearing, schedule a hearing following the usual procedures set forth in 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.704 (2012). If no hearing is desired, that fact should be documented in the claims folder. 2. Schedule the Veteran for a VA heart examination to determine the symptoms and severity of his autonomic neuropathy, dysautonomia, and bradycardia with pacemaker. The examiner must review the claims file and must note that review in the report. All tests and studies deemed necessary by the examiner should be performed. The examiner is asked to address the following: (a) If medically feasible, the Veteran should be afforded an exercise stress test. The level of METs that results in dyspnea, fatigue, angina, dizziness, or syncope should be reported. (b) If MET testing cannot be performed for medical reasons, then the examiner must make a specific finding that it is medically contraindicated, and must give an estimation 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. (c) To the extent possible, the examiner is asked to review the medical and lay evidence of record from 2001 to 2010, and provide an estimation of the level of activity, expressed in METs and supported by specific examples, such as slow stair climbing, or shoveling snow, that resulted in dyspnea, fatigue, angina, dizziness, or syncope, from 2001 to 2010. If feasible, the examiner should indicate whether the evidence is consistent with periods of varying METs levels from 2001 to 2010. (d) The examiner should also comment as to the presence of the following: (i) any evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray; (ii) any left ventricular dysfunction, expressed in percentage terms of ejection fraction; (iii) the frequency and duration of any episodes of congestive heart failure; and (iv) any requirement for continuous medication. 3. Then, readjudicate the claim. If the decision remains adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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) (2012).