Citation Nr: 1452072 Decision Date: 11/24/14 Archive Date: 12/02/14 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 for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. M. Kirby, Counsel 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. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board's October 2013 remand noted that the Veteran's private treatment records reflect a diagnosis of congestive heart failure. Accordingly, the remand directives included instructions for the AOJ to schedule the Veteran for a VA examination to determine whether it was at least as likely as not that 1) 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, 2) 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, 3) 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, and 4) the Veteran's current decreased metabolic equivalents (METs) workload and decreased ejection fraction are symptoms of his atrial fibrillation. The February 2014 VA heart examiner found that based on the Veteran's December 2012 electrocardiogram, the Veteran did not have congestive heart failure. However, even if the December 2012 electrocardiogram was interpreted correctly by the VA examiner, the fact remains that a diagnosis of congestive heart failure existed during the appeal period, which dates back to 2008. Further, the VA examiner did not provide an opinion that, or otherwise suggest, the prior diagnoses of congestive heart failure were not valid. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a current disability exists if the diagnosed disability is present during the pendency of the claim, even if the disability resolves prior to adjudication). On this basis, the Board finds that the February 2014 VA examination is inadequate, and a new examination must be completed. To that end, as the Board is remanding the increased rating claim, any decision made at the present time on his TDIU claim would be premature. For that reason, the TDIU issue must also be remanded because the claims are inextricably intertwined. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.) aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds 132 S. Ct. 75 (U.S. Oct. 3, 2011). Accordingly, the case is REMANDED for the following actions: 1. 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. 2. Schedule the Veteran for a VA examination so as to determine the nature and extent of any cardiac disability. All tests and studies deemed necessary by the examiner shall be conducted. The claims file must be sent to the examiner for review; and consideration of such shall be reflected in the completed examination report. The examiner is advised that the record establishes a current diagnosis of congestive heart failure, and that if he or she finds that no such disability exists, the examiner must establish why and how the previously-made diagnoses are invalid. 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. 3. After undertaking the development above, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. The appellant 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. 2014). _________________________________________________ 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) (2014).