Citation Nr: 1321728 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 12-31 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected arteriosclerotic cardiovascular disease with coronary artery disease. REPRESENTATION Appellant represented by: Bryan C. Thompson, Attorney ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1959 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for the claimed disability and assigned an initial 10 percent evaluation, effective April 15, 2010. The Veteran perfected an appeal as to the initial 10 percent disability rating assigned. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. 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 claim. In a November 2012 statement accompanying the Veteran's substantive appeal, his attorney indicated that his service-connected arteriosclerotic cardiovascular disease with coronary artery disease is worse than the currently assigned 10 percent evaluation indicates. He stated that the Veteran has difficulty walking and conducting normal activities of daily life due to limited breathing and an increased heart rate. He further stated that the Veteran's disability requires continuous medication for treatment, which has been increased during the pendency of this appeal. To the contrary, private primary care and cardiology treatment records, most recently dated in February 2010, indicate that the Veteran was generally doing well and had no chest pain. It was noted that when he was last seen he was under great stress due to the death of his cousin and he was having difficulty breathing, however, his breathing had improved and was reportedly "pretty much back to normal." Additionally, at the most recent VA examination evaluating the claimed disability, dated in October 2010, nearly 3 years ago, the Veteran's reported cardiac symptoms included only mild chest pain and dyspnea. Moreover, the examiner found that the claimed disability had no effect on his activities of daily living or occupational functioning. Thus, the attorney's November 2012 statement appears to suggest that the claimed disability has worsened since it was most recently evaluated during VA examination in October 2010, over two and a half years ago. 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). Also, in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran and his attorney should be asked to identify any private treatment providers who have rendered treatment for his service-connected heart disability since February 2010 and VA treatment providers who have rendered treatment since June 2010. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. In doing so, VA must follow the current procedures for pursuing records from Federal facilities, which are prescribed in 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO must contact the Veteran and his attorney and afford them the opportunity to identify or submit any additional pertinent evidence in support of the claim remanded herein, to specifically include any private treatment received for his service connected heart disability dating since February 2010 and any VA treatment received since June 2010. Based on their response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless whether a response is received, relevant ongoing VA treatment records, if any, must be obtained from the Winston-Salem VA Medical Center and Outpatient Clinic dating since June 2010. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the Veteran and his attorney of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran and his attorney must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected arteriosclerotic cardiovascular disease with coronary artery disease. The claims folder, to include any relevant records contain in Virtual VA, and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing must be conducted. All pertinent symptomatology and findings must be reported in detail. The evaluation of coronary artery disease must include METs testing by exercise or an estimate of METs if testing by exercise cannot be done for medical reasons. The examiner is asked to describe any cardiac hypertrophy or dilatation or left ventricular dysfunction with ejection fraction. A report of the examination should be prepared and associated with the claims file. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the requested actions and any additional development action deemed warranted, the RO must readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO must furnish the Veteran and his attorney with a supplemental statement of the case and afford them an opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ A. C. MACKENZIE Acting 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).