Citation Nr: 1340743 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-48 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for left ventricular hypertrophy, (exclusive of a period of a temporary total rating (TTR) from July 16, 2010, through October 31, 2010). 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to May 1977 and August 1978 to August 1994. The matter of an increased rating is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal ensued following a December 2009 rating decision which granted service connection for the heart disability and assigned a 10 percent rating, effective from August 17, 2009. In a November 2010 rating decision, the RO increased the initial disability rating to 30 percent from the August 17, 2009, date. Following heart surgery at a private facility in July 2010, in a July 2012 rating determination, the Veteran was awarded a TTR rating from July 16, 2010, through October 31, 2010. The 30 percent disability evaluation was reinstated as of November 1, 2010. A Travel Board hearing was held in March 2013 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. At the March 2013 hearing, the Veteran said that he was unemployable due to his service-connected disabilities, to include his heart disorder. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of the pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. 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 regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. The Veteran was last afforded an examination for his heart disease in November 2009. Since that time, the Veteran underwent a redo of aortic repair pseudo aneurysm in July 2010. In 2013, he testified as to increased symptoms associated with his heart disease and said that he was unemployable due to his service-connected disabilities, to include his cardiac disorder. Specifically, he noted that he experienced associated problems with his vision and ambulation due to his heart disorder. He was limited in his activities and was taking numerous medications to alleviate his symptoms. 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). Finally, the Board notes that since it has just determined that a claim for a TDIU is part of the pending increased rating claim, the Veteran has not been sent a notification letter in compliance with 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b) (2012). Therefore, on remand, he should be sent an appropriate notification letter. The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002 7 Supp. 2012); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). On remand, the Veteran must be afforded an examination to determine whether his service-connected disabilities affect his employability. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA compliant duty-to-assist letter on the issue of entitlement to a TDIU. 2. Schedule the Veteran for a VA examination to determine the current severity of his coronary artery disease. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner should identify all present symptoms and manifestations attributable to the Veteran's service-connected left ventricular hypertrophy, in accordance with the rating criteria specified at 38 C.F.R. § 4.104, Diagnostic Codes (DCs) 7005 (2012). The examiner should provide to the greatest extent possible comprehensive information that addresses all components of the applicable rating criteria -- to include an assessment of exercise capacity in terms of METs (metabolic equivalent); left ventricular function; and commentary on the presence, or lack thereof, of chronic congestive heart failure, and its frequency. The examination report must include a complete rationale for all opinions and conclusions reached. 3. Schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities on employability. The claims folder should be made available to the examiner. The examiner should offer an opinion on the Veteran's ability to secure or maintain substantially gainful employment. The examination report must include a complete rationale for all opinions and conclusions reached. Notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 4. Then, after ensuring any other necessary development has been completed as a result of the above instructions, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate opportunity to respond. Thereafter, the case 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).