Citation Nr: 1317849 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-07 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating for coronary artery disease. 1. Entitlement to an increased rating for hypertension. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This appeal to the Board of Veterans' Appeals (Board) is from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. A March 2012 Board decision granted separate compensable ratings for service-connected hypertension and diabetic nephropathy. A March 2012 rating decision implemented the Board's grant of a separate compensable rating for diabetic nephropathy and assigned a 30 percent rating. That issue is no longer before the Board. The March 2012 rating decision also implemented the March 2012 Board decision and assigned a separate compensable rating of 10 percent for hypertension. The March 2012 Board decision also found that a rating in excess of 10 percent was not warranted. However, the Veteran filed a notice of disagreement to the 10 percent rating assigned by the RO in the March 2012 rating decision. Therefore, he has initiated a new appeal of the RO action, following the final Board decision. The Board's March 2012 decision also remanded the claims for a TDIU and for a separate compensable rating for coronary artery disease to the RO for additional development and consideration. On remand, a November 2012 rating decision granted a separate compensable rating for coronary artery disease and assigned a 10 percent rating that, effective from April 8, 2009, to April 10, 2012, and a 60 percent rating as of April 11, 2012. However, as that grant does not represent a total grant of benefits sought on appeal, this claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. A March 2012 Board decision granted the Veteran's claim for a separate compensable rating for service-connected hypertension. A March 2012 rating decision implemented the grant of a separate compensable rating for hypertension and assigned an initial 10 percent disability rating, effective April 8, 2009. The Veteran responded in April 2012, within one year of notification of that rating decision, stating that he wanted to appeal the March 2012 rating decision on the 10 percent rating assigned for hypertension. The Board finds the Veteran filed a timely notice of disagreement to initiate an appeal for entitlement for a higher initial rating beyond 10 percent for his service-connected hypertension. 38 C.F.R. §§ 20.200, 20.201, 20.302(a) (2012). While the Board found in the March 2012 that a rating higher than 10 percent was not warranted, the Veteran has initiated an appeal of the rating assigned after that date. Therefore, while the issue is the subject of a final decision as of the date of the March 15, 2012, Board decision, the rating was assigned in a March 2012 rating decision and the Veteran was notified of that decision on March 28, 2012. Therefore, the appeal as to the rating assigned after March 15, 2012, can be initiated by notice of disagreement. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The Board remanded the claim for TDIU in March 2012 to provide the Veteran a VA compensation examination and medical opinion concerning his entitlement to a TDIU. In particular, the examiner was requested to provide an opinion as to whether the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, and requested a rationale for any opinion provided. The Veteran had a VA examination and opinions on various service-connected disabilities in April 2012, and an addendum opinion on the TDIU issue in February 2013. However, the opinions provided by the examiner did not sufficiently address the issue and are therefore incomplete for resolving the Veteran's TDIU issue. A remand by the Board confers on a Veteran the right to substantial compliance with the remand request. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). On remand, the April 2012 examiner opined that the Veteran's service-connected diabetes mellitus with its complications, superficial scars, and prostate cancer with erectile dysfunction, did not produce functional impairment to the Veteran for work as a former school teacher, nor render him unable to secure or follow a substantially gainful occupation. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The examiner only addressed the unemployability question as it was affected by some, but not all, of the service-connected disabilities. The examiner did not consider service-connected conversion reaction and hypertension disabilities in the context of this opinion on the occupational impairment produced by all of his service-connected disabilities, in combination. Also, because a separate rating was not assigned for coronary artery disease until the November 2012 rating decision, the April 2012 examiner did not consider service-connected coronary artery disease when providing an opinion on whether all of his service-connected disabilities, in combination, preclude substantially gainful employment. Therefore, another examination is needed that considers all of the service-connected disabilities, in combination, including coronary artery disease (ischemic heart disease), hypertension, conversion reaction, prostate adenocarcinoma, erectile dysfunction, diabetes mellitus, diabetic nephropathy, and post-operative scar of the left elbow. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case on the issue of entitlement to a rating higher than 10 percent for hypertension. 2. Then, schedule the Veteran for a VA examination to determine the current severity of coronary artery disease. The examiner must review the claims file and must note that review in the report. The examiner should report all signs of symptoms of coronary artery disease. 3. Then, schedule the Veteran for a VA examination to determine whether he is unable to secure or follow substantially gainful occupation by reason of his service-connected disabilities. The examiner must review the claims file and must note that review in the report. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran is unable to secure or follow a substantially gainful occupation solely due to his service-connected disabilities of coronary artery disease (ischemic heart disease), hypertension, conversion reaction, prostate adenocarcinoma, erectile dysfunction, diabetes mellitus, diabetic nephropathy, and post-operative scar of the left elbow. The rationale for the requested opinion must be provided. The examiner may consider the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not the Veteran's age or any impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. If the Veteran is felt capable of employment when only his service-connected disabilities are considered, the examiner should state what type of employment and what accommodations would be needed to sustain that employment. 4. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 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).