Citation Nr: 1327781 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-03 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 60 percent for polymyositis. 2. Entitlement to a rating in excess of 30 percent for coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel REMAND The Veteran served on active duty from June 1964 to October 1968. These matters come before the Board of Veterans' Appeals (Board) from September 2007 and June 2010 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Chicago, Illinois. In the September 2007 decision, the RO denied entitlement to a rating in excess of 60 percent for polymyositis. In the June 2010 decision, the RO denied entitlement to a rating in excess of 30 percent for coronary artery disease. (The Veteran has been in receipt of a total (100 percent) disability rating based on unemployability since November 1974.) The Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for hypertension, and the Board had remanded this issue in April 2008 for further development. In May 2009, the agency of original jurisdiction (AOJ) granted service connection for this disability, and thereby resolved the appeal as to that issue. A veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). In this case, the evidence reflects that the Veteran's service-connected polymyositis may have worsened since his last VA examination in August 2007. For instance, the Veteran reported in letters dated in April 2009 and August 2010 that his myopathy had gotten worse. Also, a September 2011 VA primary care medication management note reveals that the Veteran's wife reported that the Veteran's muscle pain was worsening. In an April 2013 statement, the Veteran's representative requested a new VA examination to assess the severity of the service-connected polymyositis. Given such information, VA's duty to obtain a new examination as to the current severity of the Veteran's service-connected polymyositis is triggered. With respect to the claim for an increased rating for coronary artery disease, the provisions of 38 C.F.R. § 4.100 direct that even if the requirements for a 30 percent rating are met with regard to various cardiovascular system disabilities (including coronary artery disease), metabolic equivalents (METs) testing is required in all cases except: (1) when there is a medical contraindication, (2) when the left ventricular ejection fraction has been measured and is 50 percent or less, (3) when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year, or (4) when a 100 percent rating can be assigned on another basis. 38 C.F.R. § 4.100 (2012). The Veteran was afforded a VA examination in December 2009 to assess the severity of the service-connected coronary artery disease. There is no evidence that any exercise tolerance test was conducted during the examination, despite the fact that none of the exceptions in 38 C.F.R. § 4.100 were evident in the examination report. In June 2010, a VA physician reviewed the Veteran's claims file and opined that she was not able to provide a METs level estimation without resorting to mere speculation. There was no further explanation or reasoning for this opinion, however the physician did note that the Veteran had undergone a nuclear dypridamole test that did not show any ischemia and an excellent left ventricular ejection fraction. This strongly suggested that his METs level was not significantly impaired. The June 2010 opinion that a METs level could not be provided without resorting to mere speculation is insufficient because it is not accompanied by any further explanation and weighs neither for nor against the claim. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (an examiner must provide a rationale for saying that an opinion could not be provided without resort to speculation, and should provide a statement as to whether there is additional evidence that could enable an opinion to be provided); Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). As no METs level was provided following the December 2009 VA examination and no sufficient explanation has been given for why such information was not able to be determined, a remand is required in order to afford the Veteran a new VA cardiology examination. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where an examination report does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and coordinate with him to schedule a VA examination during a time in which he is experiencing a flare up of his polymyositis. All such efforts shall be documented in the claims file. If it is not possible to schedule the examination during a flare up, the reason must also be documented in the claims file. (The examination shall nevertheless be scheduled.) The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review. The examiner shall report the severity and extent of all symptoms associated with the Veteran's polymyositis, to include whether the disease is active or inactive, whether there are any constitutional manifestations of polymyositis, and whether the symptoms cause total incapacitation. The examiner shall also identify all joints affected by the polymyositis. With respect to each joint affected by polymyositis, the examiner shall report all appropriate ranges of joint motion. The examiner shall also provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner shall secondly address any loss of endurance, coordination, speed, or strength because of symptoms such as pain and equate the level of impairment caused by all such functional losses to an equivalent level of decreased range of motion, stated in degrees. This shall be done for each joint affected and all appropriate ranges of motion. The examiner shall also report the extent of any ankylosis involving a joint affected by polymyositis and whether any such ankylosis is favorable or unfavorable. To the extent possible, any muscular manifestations of the service-connected polymyositis shall be distinguished from those of any other disorder present, including muscular dystrophy and peripheral neuropathy of the upper extremities. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected coronary artery disease. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review. The examiner must conduct and report the results of appropriate exercise test(s) needed to properly calculate the Veteran's METs (metabolic equivalents). The examiner shall report the actual level of METs that result in dyspnea, fatigue, angina, dizziness, or syncope. If METs testing is not possible, the examiner must provide reasons why such testing was not conducted. An estimated level of activity (expressed in METs and supported by specific examples, such as slow stair climbing) that results in dyspnea, fatigue, angina, dizziness, or syncope may only be provided if actual testing is contraindicated for medical reasons, if the left ventricular ejection fraction has been measured and is 50 percent or less, or if chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year. The examiner shall also report whether the Veteran has congestive heart failure (and, if so, the number of episodes in the previous year) or left ventricular dysfunction (and, if so, the percentage ejection fraction). The examiner shall also report whether the Veteran has sustained ventricular arrhythmia and/or atrioventricular block. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. 3. The AOJ shall review the examination reports to ensure that they contain the information requested in this remand and are otherwise complete. 4. If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).