Citation Nr: 1332505 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-10 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for atrial fibrillation associated with sleep apnea-hypopnea syndrome. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Veresink, Patricia INTRODUCTION The Veteran had active service from June 1972 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Diego, California, that granted service connection for atrial fibrillation and assigned an initial 30 percent rating, effective May 13, 2008. 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 The Veteran maintains that his atrial fibrillation should be rated under the diagnostic code for arteriosclerotic heart disease (coronary artery disease) or another such diagnostic code that considers his congestive heart failure. The Veteran's private medical records show a diagnosis of congestive heart failure. His METs have been estimated anywhere between three and eight. The Board finds that a VA examination is necessary to determine if the Veteran's congestive heart failure is related to, caused by, or a symptom of his service-connected atrial fibrillation. Additionally, the examiner should provide a finding regarding the Veteran's workload METs level, his ejection fraction, and any other symptoms of his atrial fibrillation. The Board notes that the Veteran has requested a 100 percent disability rating due to his heart disability, which implies that he is unable to work due to his service-connected disabilities, specifically due to his atrial fibrillation. The medical evidence shows that the Veteran is limited regarding his ability to work due to multiple disabilities. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations"); See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that an appeal for higher rating includes a claim for TDIU, if reasonably raised by the record). In light of the Court's determination that evidence of unemployability in the context of a rating claim may include a TDIU claim, the Board finds that his pending claim of service connection for diabetes mellitus must be adjudicated by the RO and that a remand of the issue of TDIU for development by the RO, specifically to provide an examination to determine whether he is capable of obtaining and maintaining employment, is the appropriate action. Additionally, VA must attempt to obtain relevant records from a Federal department or agency unless further attempts would be futile. These records include medical and other records from the Social Security Administration (SSA). See 38 C.F.R. § 3.159(c)(2). In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the CAVC found that VA's duty to assist specifically includes requesting information from other Federal departments. In Baker v. West, 11 Vet. App. 163, 169 (1998), the CAVC further stated that VA is required to obtain evidence from other agencies, including decisions of the SSA. Therefore, the Board finds that remand is necessary to obtain any outstanding SSA records. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file, physically or electronically, any SSA records relating to the Veteran's disability claim. All attempts to obtain these records should be documented in the claims file. 2. Obtain and associate with the claims file, physically or electronically, any outstanding VA treatment records for his asserted disability. If such records cannot be obtained or if no such records exist, the RO should document such findings, and the Veteran shall be notified accordingly. 3. Schedule the Veteran for a VA examination so as to determine the extent of any cardiac disability. All tests and studies deemed necessary by the examiner shall be conducted. The claims file, including a copy of this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; and consideration of such shall be reflected in the completed examination report. The examiner should review the claims file and address the following questions: (a) Is it at least as likely as not that the Veteran has heart disease that is related to or had its onset in service or developed within one year of his discharge, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that the Veteran's congestive heart failure or other current cardiac disability was caused by a service-connected disability, to specifically include the service-connected atrial fibrillation? (c) Is it at least as likely as not that the Veteran's congestive heart failure or other current cardiac disability was aggravated by a service-connected disability, to specifically include the service-connected atrial fibrillation? If the Veteran's congestive heart failure or other current cardiac disability is aggravated by a service-connected disability, the examiner, to the extent possible, is requested to indicate the degree of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. (d) Is it at least as likely as not that the Veteran's current decreased METs workload and decreased ejection fraction are symptoms of the Veteran's atrial fibrillation? If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for all findings and conclusions. 4. Unless it has already been completed, adjudicate the Veteran's pending claim of service connection for diabetes mellitus. 5. Schedule the Veteran for a VA examination, to be conducted, if possible, by a vocational specialist, to ascertain the impact of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment. The examiner should review the claims file and address the following issues: a.) The VA examiner is requested to evaluate and discuss the impact of the Veteran's service-connected disabilities, specifically sleep apnea-hypopnea syndrome and atrial fibrillation, on the Veteran's employability. (Should service connection for diabetes mellitus be granted prior to this evaluation, the service-connected diabetic disability and symptoms should also be considered.) b.) The VA examiner is requested to offer an opinion as to whether the Veteran's service-connected disabilities, without consideration of his age or non-service-connected disabilities render him unable to secure or maintain a substantially gainful occupation in light of his education, training and work history. 6. Then readjudicate the Veteran's claim for a higher rating for atrial fibriallation and adjudicate his entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ STEVEN D. REISS 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).