Citation Nr: 1337042 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-30 764 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected arteriosclerotic heart disease status post myocardial infarction (heart disability). ATTORNEY FOR THE BOARD J. Moses, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1966 to March 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Cleveland, Ohio, Regional Office (RO), which granted service connection for arteriosclerotic heart disease status post myocardial infarction associated with herbicide exposure, and assigned an initial 10 percent rating effective May 17, 2010. The Board finds that a total disability rating for compensation purposes based on individual unemployability (TDIU) claim has not been raised by the Veteran or the record. The VA examiner who conducted the November 2010 VA examination noted that the Veteran retired from a database administrator job and then worked in landscaping and snow removal. The VA examiner further noted that the Veteran's heart disability does not limit him from working. The Veteran has asserted that he has some physical limitations attributed to his heart condition, but he has not otherwise reported or contended that his heart condition renders him unemployable. A TDIU claim is raised when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). If it is the Veteran's intent to claim TDIU, he will need to express that intent to VA. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). The Veteran last underwent a VA examination in November 2010. Although the mere passage of time is insufficient to require a new VA examination, where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately determine the current state of the disability, VA must provide a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007), see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Though a stress test was conducted at the November 2010 VA examination, the examiner reported that the resulting METs were "not available." During a January 7, 2011, stress test, the Veteran became hypotensive and was referred for an immediate heart catherization procedure. A January 18, 2011, stress test revealed a workload of 9.2 METs. In his November 2011 substantive appeal (VA Form 9), the Veteran claimed that he did not participate in a stress test on January 18, 2011, and that its results must be a "mistake." The Veteran reported that his last stress test was administered on January 8, 2011. The Veteran further asserted that he consulted with his treating cardiologist, Dr. P.S., who disagrees with the January 18, 2011, stress test results for the reason that the reported METs are not consistent with the Veteran's functional capacity. The Veteran claims that Dr. P.S. estimated a range of greater than "3-5 METs." The Board has liberally construed these statements as the Veteran's claim that his heart disability is worse than is reflected by the January 2011 stress test results; therefore, a new VA examination is warranted to try to measure any worsening since the last examination. Accordingly, the case is REMANDED for the following action: 1. Request from the Veteran the proper authorization forms allowing for the procurement of treatment records from Dr. P.S. and any other private health care provider who may have provided treatment of a heart disorder. Upon receipt of the appropriate releases, the RO should then contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record. 2. Then schedule the Veteran for an appropriate VA heart disorders examination to assist in determining the severity of his heart disability. The relevant documents in the claims file should be made available to the examiner for a review of the Veteran's pertinent medical history. The examiner should conduct all diagnostic testing and evaluation needed to make this determination. Any indications that the Veteran's complaints or symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should specifically: a) Provide the level of METs the Veteran can perform as shown by diagnostic exercise testing (If testing cannot be done for medical reasons, provide an estimate of the level of activity expressed in METS, and support the METS estimate by specific examples). b) Make a specific finding as to whether there is evidence of cardiac hypertrophy or dilation. c) Make a specific finding on the degree of vocational impairment due to the Veteran's heart disability. 3. After completion of the above and any additional development deemed necessary, the issue o appeal for an initial disability rating in excess of 10 percent disabling for arteriosclerotic heart disease should be readjudicated in light of all the evidence of record. If the determination remains adverse to the Veteran, he should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). 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 2002). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, 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) (2013).