Citation Nr: 1518155 Decision Date: 04/28/15 Archive Date: 05/05/15 DOCKET NO. 13-18697A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent beginning April 29, 2008, and prior to April 18, 2009, for coronary artery disease, status post myocardial infarction X 2 associated with hypertension. 2. Entitlement to an evaluation in excess of 10 percent beginning July 1, 2009, and prior to August 6, 2010, for coronary artery disease, status post myocardial infarction X 2 associated with hypertension. 3. Entitlement to an evaluation in excess of 60 percent beginning August 6, 2010, and prior to August 13, 2010, for coronary artery disease, status post myocardial infarction X 2 associated with hypertension. 4. Entitlement to an evaluation in excess of 30 percent beginning December 1, 2010, and prior to October 27, 2011, for coronary artery disease and myocardial infarction status post coronary artery bypass grafting associated with hypertension. 5. Entitlement to an evaluation in excess of 60 percent beginning October 27, 2011, and prior to November 9, 2011, for coronary artery disease and myocardial infarction status post coronary artery bypass grafting associated with hypertension. 6. Entitlement to an evaluation in excess of 60 percent beginning May 6, 2013, and prior to June 27, 2013, for coronary artery disease and myocardial infarction status post coronary artery bypass grafting associated with hypertension. 7. Entitlement to a total disability rating for compensation purposes based on individual unemployability beginning April 29, 2008, and prior to April 18, 2009; beginning July 1, 2009, and prior to August 13, 2010; and beginning December 1, 2010, and prior to October 27, 2011. REPRESENTATION Veteran represented by: Attorney Robert W. Gillikin, II ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to March 1989. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. As a preliminary matter, the Board notes that the Veteran filed an increased rating claim, which was received by the RO on April 29, 2009. The issues as reflected on the cover page of this remand do not include all time periods encompassed by the appeal. This is so because the RO has assigned 100 percent schedular disability ratings for the Veteran's claim on appeal during those omitted time periods. The omitted time periods include: from April 19, 2009, to June 30, 2009; from August 13, 2010, to November 30, 2010; from November 9, 2012, to May 5, 2013; and from June 28, 2013, through the present. As the Veteran has already been assigned the maximum schedular benefit available during these periods, no benefit remains to be awarded and no controversy remains. Cf. Swan v. Derwinski, 1 Vet. App. 20, 22-23 (1990). Although the Veteran did not formally file his claim for a total disability rating for compensation purposes based on individual unemployability (TDIU) until June 2013, the Board finds that there is evidence that the Veteran was unemployable during all periods on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a TDIU claim is part and parcel of an increased rating claim when raised by the record). Accordingly, the issue of TDIU has been added to the cover page for the time periods on appeal where the schedular rating is less than 100 percent and TDIU has not already been granted. All issues on appeal are REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND Procedural History By way of history, service connection for coronary artery disease, status post myocardial infarction X 2, was first granted in September 2002. The RO assigned a temporary 100 percent rating beginning October 31, 2001, and prior to February 1, 2002, for a three month period of convalescence following a myocardial infarction (heart attack). Beginning February 1, 2001, the RO assigned a 10 percent disability rating. The Veteran suffered another heart attack on January 18, 2004, and in December 2004, the RO assigned a 100 percent rating beginning January 18, 2004, and ending April 30, 2004. Thereafter, beginning May 1, 2004, the Veteran's disability rating was returned to 10 percent disabling. In April 2009, the Veteran was hospitalized and underwent a stent procedure. He filed a claim for an increased rating and in July 2009, the RO continued the 10 percent rating. In August 2009, the Veteran disagreed with that decision claiming that the RO did not consider a temporary total disability rating for a period of convalescence following hospitalization. In November 2009, the RO assigned a 100 percent evaluation beginning April 19, 2009, the date of his hospital admission, through June 30, 2009. Beginning July 1, 2009, the RO returned the Veteran's rating to 10 percent disabling. The Veteran filed a September 2010 notice of disagreement with respect to the 10 percent rating, and in a June 2011 rating decision, the RO continued that 10 percent rating through August 5, 2010, and increased the Veteran's rating to 60 percent disabling beginning August 6, 2010. The RO also assigned a temporary 100 percent evaluation beginning August 13, 2010, the date the Veteran was admitted to the hospital prior to undergoing coronary bypass surgery, through November 30, 2010, the final day of a three month convalescence period following that surgery. Thereafter, beginning December 1, 2010, the RO assigned a 30 percent disability rating. In December 2011, the Veteran disagreed with the 30 percent disability rating, and in May 2013, the RO continued the 30 percent rating from December 1, 2010, through October 26, 2011, and assigned a 60 percent rating beginning October 27, 2011, to November 8, 2012. A 100 percent schedular rating was assigned beginning November 9, 2012, through May 5, 2013, and a 60 percent rating was assigned beginning May 6, 2013. In June 2013, the Veteran filed a claim for TDIU based on all service-connected disabilities, and in July 2013, the Veteran filed a formal appeal alleging his disability should be rated as totally disabling. In July 2014, the RO assigned a 100 percent disability rating beginning June 28, 2013, for on insertion of an Automatic Implantable Cardioveter Defibrillator (AICD). See 38 C.F.R. § 4.71a, Diagnostic Code 7011. The RO also continued the 60 percent ratings assigned beginning October 27, 2011, to November 8, 2012, and beginning May 6, 2013, to June 27, 2013, and granted the Veteran's TDIU claim for both periods as well. As there are periods on appeal where the ratings are still less than the maximum benefit available, the appeal is still pending. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Remand with Respect to Schedular Ratings The Board finds there is outstanding evidence which must be obtained prior to adjudicating the disability ratings for the periods on appeal. For the time period beginning December 1, 2010, through October 26, 2011, the only evidence of record is an October 19, 2011, echocardiogram. Given the seriousness of the Veteran's heart condition, the Board finds it difficult to believe that the Veteran did not receive any treatment whatsoever during these eleven months. Furthermore, a letter from the RO to Dr. D. R. dated September 5, 2012, requested records beginning December 1, 2011, through the present. A review of the record indicates this was likely a typographical error and that the RO meant to request records from December 1, 2010, to the present. Additionally, a July 28, 2010, treatment note from Dr. D. R. indicated that the Veteran was hospitalized at Sentara CarePlex from July 24-25, 2010, for chest pains. Although the RO has previously requested medical records from this healthcare facility, the RO has never requested medical records for this time period. Moreover, there is no medical evidence associated with the claims file for the time period beginning April 29, 2008, through April 18, 2009. In addition to the above identified time periods, which are clearly missing medical records, it is unclear whether all time periods on appeal may be missing relevant medical records. As such, the Board finds a remand with respect to all time periods on appeal is required to ensure the claims file is complete prior to adjudication. Accordingly, on remand the RO must request records from all identified medical providers for the time period April 29, 2008, through June 27, 2013, even though the claims file may already contain many of these records. The RO must specifically request records from: Dr. D. R., Sentara CarePlex, and Dr. J. J. at the Tidewater Heart Institute, and any other medical providers identified by the Veteran. Remand with Respect to TDIU As discussed in the introduction, evidence in the file suggests the Veteran may have been unemployable for VA purposes during all periods on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, a remand is required to obtain evidence relating to the Veteran's employment and to obtain a retrospective medical opinion regarding his employability. Notably, the Veteran is either already receiving TDIU or has been granted a 100 percent schedular evaluation from October 27, 2011, through the present. Accordingly, his claim for TDIU will only focus on the time periods on appeal beginning April 29, 2008, through October 26, 2011, where his disability has not been rated as 100 percent disabling. A July 28, 2010, treatment note from Dr. D. R. reported that the Veteran experienced chest pains while working and that he should remain out of work until further notice. Additionally, the Veteran indicated at his October 2010 VA examination that he was unable to return to work and was applying for medical retirement from his employer, the U.S. Postal Service. Therefore, on remand the RO must obtain the Veteran's employment records from all identified employers from April 29, 2008, through October 26, 2011. Additionally, although the Veteran has never indicated he has applied for or is receiving Social Security Administration (SSA) disability, given the seriousness of his disability the RO must contact the SSA to determine if the Veteran has or is in the process of making a claim. If so, the RO must also obtain those records. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). After all of the relevant identified records have been obtained, the RO must obtain a retrospective medical opinion as to the effect the Veteran's service-connected disabilities had on his ability to obtain and maintain substantially gainful employment consistent with his education and experience. 38 U.S.C.A. § 5013A; see also Chotta v. Peake, 22 Vet. App. 80 (2008) (noting that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). This retrospective opinion must consider the time period beginning April 29, 2008, and through October 26, 2011. Notably, the Board is prohibited from granting TDIU in the first instance without ensuring that the claim is adjudicated in accordance with 38 C.F.R. § 4.16(b). Thus, following the development discussed above, if the schedular requirements for TDIU are still not met for any time period on appeal in which TDIU has not already been granted, the RO must consider whether the matter should be referred to the Director of Compensation and Pension (C&P) for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. Specifically, the RO must request medical records from: (a) Dr. D. R., the Veteran's treating cardiologist; (b) Sentara CarePlex; (c) Dr. J. J., from the Tidewater Heart Institute; and (d) any other identified medical providers. The records requested must be for the time period beginning April 29, 2008, through October 26, 2011. The RO must also search the SSA database to determine if the Veteran has, or is in the process of, filing a claim for SSA disability payments. If so, the RO must obtain those records. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must request the Veteran provide an authorization for VA to obtain employment records from the U.S. Postal Office and any other employer identified by the Veteran during the relevant time period. The RO must then contact the identified employers and request a complete copy of any and all employment, personnel, medical and/or workers' compensation records pertaining to the Veteran for the dates beginning April 29, 2008, through October 26, 2011. All efforts to obtain these records must be fully documented. If these records do not exist or cannot be obtained, the Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding medical treatment records and employment records, the RO must forward the claims file (to include any electronic records) to the appropriate medical professional to obtain a retrospective medical opinion. The medical professional must determine the nature and severity of the Veteran's coronary artery disease associated with hypertension, as well as the impact such has had on his ordinary activities, to include his employability, for the time period beginning April 29, 2008, through October 26, 2011. In this opinion, the medical professional must include a discussion as to whether the functional effects of the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and occupational experience for the time period between April 29, 2008, through October 26, 2011. If the medical professional finds that during this time period the Veteran was at times not precluded from following substantially gainful employment consistent with his education and occupational experience and at other times was so precluded, the exact dates for those separate periods must be stated and the medical professional must provide supporting rationale for those conclusions. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the consulting physician is unable to provide the requested opinion without resorting to speculation, the examiner must state whether the need to speculate is caused by: a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts); by a deficiency in the record (i.e., additional information or testing is required); or by the examiner (i.e., the provider does not have the requisite knowledge or training to formulate such an opinion). 4. The examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If deficient in any manner, the RO must implement corrective procedures at once. 5. With regard to the claim for TDIU, following completion of the development discussed above, if the schedular requirements are still not met for any time period on appeal in which TDIU is at issue, the RO must consider whether the matter should be referred to the Director of Compensation and Pension (C&P) for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). 6. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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 2014). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).