Citation Nr: 1319648 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-01 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement an evaluation in excess of 30 percent for coronary artery disease. 3. Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: ROBERT V. CHISHOLM ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from December 1968 to January 1975. This case initially came before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO). In a March 2007 rating decision, the RO in St. Louis, Missouri, in pertinent part, denied service connection for hypertension; and in a May 2010 rating decision, the RO in Chicago, Illinois, continued the 30 percent evaluation for coronary artery disease. In March 2012, the Board issued a decision denying service connection for hypertension and remanding the issues of entitlement to higher rating for coronary artery disease and TDIU to the RO for further development. The Veteran appealed the denial of service connection for hypertension to the Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Partial Remand (Joint Motion) with the Court. In November 2012, the Court issued an Order granting the Joint Motion and remanded the case to the Board for further action consistent with the Joint Motion. 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 After review of the record, the Board concludes that additional remand is warranted. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. In light of the JMR and Court remand, the Board concludes that further development is required before a decision on the claim for service connection for hypertension could be rendered. With respect to the claims for a higher rating for coronary artery disease and TDIU, the Board observes that no action appears to have been undertaken pursuant to the prior Board March 2012 remand. Accordingly, on Remand, the RO or AMC should ensure that the development requested below is completed. Hypertension The Veteran argues that he has hypertension secondary to service-connected type II diabetes mellitus. As suggested in the Joint Motion, there is an apparent conflict in the medical evidence. A report of VA examination dated in December 2006 reflects that the Veteran's essential hypertension was less likely as not secondary to his diabetes mellitus because the diagnosis of hypertension was not accompanied by findings of nephropathy. It was also noted that the Veteran did not have any secondary causes of hypertension related to his diabetes mellitus, such as renal artery stenosis. The examiner did not explain the significance of the absence of findings for nephropathy and renal artery stenosis in his opinion. In contrast, a December 2008 VA treatment record reflects that the Veteran's hypertension is most likely secondary to diabetes mellitus. However, the examiner did not provide any explanation for this conclusion. The Board is of the opinion that a new medical opinion addressing the etiology of the Veteran's hypertension should be obtained to reconcile the conflict in the medical evidence. This opinion should include a detailed rationale for any opinion reached. Coronary Artery Disease and TDIU As noted in the prior Board remand, the Veteran was last afforded an examination for his coronary artery disease in April 2010. The Veteran has asserted that the examination report did not accurately reflect his statements. As an example, he cited that the report stated that he did not report chest pain and did not use nitroglycerin when in fact he contends that he told the examiner that he had chest pain on exertion and that he keeps nitroglycerin in his possession. Additionally, the evidence since the April 2010 examination suggests that his disability may have worsened. The examiner indicated that the Veteran's heart disability did not affect his activities of daily living. In various statements, the Veteran and his co-workers indicated that the Veteran retired from his job due to his service-connected disabilities. Accordingly, the Board finds that a contemporaneous VA medical examination is warranted. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). TDIU Claim Finally, the Board notes that the Veteran has not been sent a notification letter in compliance with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2011). Therefore, on remand, he should be sent an appropriate notification letter. The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2011); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). On remand, the Veteran must be afforded an examination to determine whether his service-connected disabilities affect his employability. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a VCAA compliant duty-to-assist letter on the issue of entitlement to a total rating based on unemployability due to service-connected disability. 2. Schedule the Veteran for a VA examination to ascertain the etiology of the Veteran's hypertension and to determine the current severity of his coronary artery disease. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. Hypertension The examiner should render an opinion addressing the following inquiries: (a) is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's hypertension is proximately due to or aggravated by his service-connected type II diabetes mellitus disability; and (b) is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's hypertension is proximately due to or aggravated by his service-connected coronary artery disease. A complete rationale for all opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., that he or she relied upon in reaching his or her conclusions. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner should reconcile his or her opinion with any contradictory opinion contained in the record to include the December 2006 VA examination report and December 2008 VA treatment record. Coronary Artery Disease The VA examiner should identify all present symptoms and manifestations attributable to the Veteran's service-connected coronary artery disease, in accordance with the rating criteria specified at 38 C.F.R. § 4.104, Diagnostic Codes 7005 (2011). The examiner should provide to the greatest extent possible comprehensive information that addresses all components of the applicable rating criteria -- to include an assessment of exercise capacity in terms of METs (metabolic equivalent); left ventricular function; and commentary on the presence, or lack thereof, of chronic congestive heart failure, and its frequency. The examination report must include a complete rationale for all opinions and conclusions reached. 3. Schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities on employability. The claims folder should be made available to the examiner. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities. The examination report must include a complete rationale for all opinions and conclusions reached. Notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 5. Then, after ensuring any other necessary development has been completed as a result of the above instructions, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned 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 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). _________________________________________________ DAVID L. WIGHT 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).