Citation Nr: 1332560 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-11 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for coronary artery disease (CAD). 3. Entitlement to an initial rating in excess of 10 percent for cold injury residuals of the right foot as of September 16, 2009, and 30 percent as of February 11, 2010. 4. Entitlement to an initial rating in excess of 10 percent for cold injury residuals of the left foot as of September 16, 2009, and 30 percent as of February 11, 2010. 5. Entitlement to service connection for congestive heart failure (CHF). 6. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to May 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for hypertension and CAD. The Veteran appealed those issues. In a January 2010 decision, service connection was granted for cold injury residuals of the left foot and right foot, each assigned a 10 percent rating respectively, from September 2009. The Veteran appealed those ratings. In a September 2011 rating decision, an increased rating was granted for each foot, assigned a 30 percent rating effective from February 2010. These claims remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In a March 2011 rating decision, the RO denied service connection for CHF, swelling in the legs and ankles, and COPD. In October 2011, a notice of disagreement was received as to the issues of service connection for CHF and for COPD. 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 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 Veteran's claims so that the Veteran is afforded every possible consideration. With regard to the claims of service connection for hypertension and CAD, the Veteran has not been afforded a VA examination. In reviewing the service treatment records, while there is no inservice treatment for hypertension or CAD, there is no separation examination contained in the record. Moreover, the Veteran's mother submitted a statement in which she indicated that she became aware of the Veteran's high blood pressure in 1982, when he was stationed in Korea. The post-service records show that these disorders have been treated since the late 1990's. However, since hypertension and CAD are presumptive disorders per 38 C.F.R. § 3.309, a connection to service may be established by continuity of symptomatology. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). In the same case, the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) also "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. at 1335. With respect to the current appeal, this list includes hypertension and valvular heart disease. See 38 C.F.R. § 3.309(a). Walker held that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above. The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection or service connection via continuity of symptomatology. Thus, the Board finds that since there is lay evidence purporting to show continuity of claimed cardiac disability and service, the Veteran should be examined and a VA opinion obtained. See generally McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claim for higher ratings for service-connected cold injuries of the feet, as noted, the RO did not grant the maximum benefits sought. However, since the RO made such an indication, these issues were not the subject of a supplemental statement of the case nor were the remaining matters on appeal reconsidered. As such, those issues should be returned to the AOJ for consideration. In that regard, it should be determined also if the Veteran is seeking an extraschedular rating. With regard to the issues of service connection for CHF and COPD, the Veteran has not been issued a statement of the case. The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding treatment records from the Lexington VA Medical Center. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension, CAD, and any heart disability present. Any indicated tests, if indicated, should be accomplished. The examiner should review the record prior to examination. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that hypertension, CAD, and any heart disability present, had its clinical onset during service, within the one year period after service, or whether each diagnosis s related to any in-service disease, event, or injury. The examiner should consider the statement of the Veteran's mother that hypertension was diagnosed in 1982. The examiner should also provide a complete rationale for all opinions expressed and conclusions reached. 3. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 4. The AMC should then readjudicate the claims on appeal in light of all of the evidence of record, to specifically include the matters of entitlement to a higher initial rating for cold injury residuals of each foot. Extraschedular consideration should be made. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 5. The Veteran should be sent a statement of the case as to the issue of entitlement to service connection for CHF and COPD in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the Veteran perfects his appeal by submitting a timely and adequate substantive appeal on this issue, then the claim 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). _________________________________________________ K. PARAKKAL 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).