Citation Nr: 1315052 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 06-10 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected atherosclerotic heart disease, status post circumflex stent angioplasty, for the period from October 22, 2004 to June 29, 2009. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to August 1970. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a June 2005 rating decision, the RO granted service connection for atherosclerotic heart disease, status post circumflex stent angioplasty, evaluated as 30 percent disabling from August 15, 2002, and as 10 percent disabling from October 22, 2004. The Veteran appealed the issue of entitlement to a higher initial rating. In April 2009, the Board remanded the claim for additional development. In May 2011, the RO granted the claim, to the extent that it increased the Veteran's rating to 30 percent, with an effective date of June 30, 2009. Since this increase did not constitute a full grant of the benefits sought, the increased initial rating issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In May 2012, the Board granted the claim, to the extent that it awarded a rating of 60 percent, with an effective date of June 30, 2009. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In January 2012, while his case was pending at the Court, the VA's Office of General Counsel and appellant's representative filed a Joint Motion requesting that the Court vacate part of the Board's May 2012 decision. In January 2013, the Court issued an Order vacating the May 2012 Board decision, to the extent that it denied a rating in excess of 10 percent for the period from October 22, 2004 to June 29, 2009. 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 A review of the January 2012 Joint Motion shows that it was agreed that the Board's May 2012 decision had failed to consider certain potentially favorable evidence. It was further agreed that there was evidence indicating that the Veteran had been afforded a stress test on April 2, 2008 (as referenced in the June 2009 VA examination report), which showed that he had a workload of 4 METs. It was also agreed that there was evidence that he had been afforded a stress test on February 23, 2006. The Joint Motion stated that such a stress test was referenced in VA progress notes, dated on January 31, 2006 (referencing a "pending" stress test), April 4, 2006 (noting a stress MPI on February 23, 2006), and July 11, 2006 (noting "stress MPI done") (no date listed), and in the July 2006 hearing transcript) (in which the Veteran testified that he had last received treatment for his heart four months ago). However, the Joint Motion noted that the actual test results from any such February 23, 2006 stress test were not in the record, and that on remand, an attempt should be made to obtain them. With regard to the April 2, 2008 stress test, although there are VA reports of record, dated on April 2, 2008, which indicate that the Veteran had been afforded a stress test, these reports do not show that he was found to have a workload of 4 METs. See also discussion of these test results in a VA report, dated on April 3, 2008. With regard to a stress test from February 23, 2006, no such report is currently of record. The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c)(2). On remand, an attempt should be made to obtain the referenced stress tests for the Veteran, dated on February 23, 2006, and April 2, 2008 (allegedly showing a workload of 4 METs). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1), (2), (3) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also VAOPGCPREC 12- 95, 60 Fed. Reg. 43186 (1995). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any stress tests for the Veteran dated on February 23, 2006, and April 2, 2008 (allegedly showing a workload of 4 METs). As set forth in 38 U.S.C.A. §5103A(b)(3) and 38 C.F.R. §3.159(c)(2), the RO should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Thereafter, a formal written unavailability memorandum must be added to the claims files, and the appellant must be so notified, and provided with an opportunity to respond. 2. Thereafter, the RO should readjudicate the issue on appeal. If the determination remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The appellant should be given an opportunity to respond to the SSOC. If no pertinent evidence is obtained, an SSOC is not required. 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. 2012). _________________________________________________ JONATHAN B. KRAMER 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).