Citation Nr: 1533592 Decision Date: 08/06/15 Archive Date: 08/20/15 DOCKET NO. 10-13 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a separate disability rating for left ventricular hypertrophy, as secondary to service-connected hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to June 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In an April 2011 Board decision, the Board remanded the case for evidentiary development, and in a May 2014 Board decision, the Board granted entitlement to a disability rating of 10 percent from December 3, 2010, and denied a compensable rating prior to December 3, 2010, for hypertension. The Veteran then appealed the Board's May 2014 decision. In March 2015, based on a Joint Motion for Partial Remand (JMR), the U.S. Court of Appeals for Veterans Claims (Court) issued an Order vacating the portion of the Board's May 2014 decision regarding the issue of whether additional compensation is warranted for the Veteran's left ventricular hypertrophy as secondary to hypertension and remanded this issue to the Board for further development and readjudication. The Board acknowledges that in the June 2015 Appellant's Brief, the Veteran's representative argued that an increase in the disability ratings for hypertension is warranted. However, the March 2015 JMR expressly noted that the assigned ratings for hypertension should not be disturbed; therefore, the issue of increased disability ratings for hypertension is not before the Board at this time. All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed, including a transcript of the February 2011 videoconference Board hearing presided over by the undersigned Veterans Law Judge. The issue of entitlement to service connection for hypertensive renal disease and microalbuminuria, to include as secondary to hypertension, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See April 2014 Representative Brief; May 2011 VA examination; see also May 2014 Board decision; May 2014 AMC Memo. The Board does not have jurisdiction over this matter, and it is again referred to the AOJ for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In a May 2014 Board decision, the Board granted entitlement to a disability rating of 10 percent from December 3, 2010, and denied a compensable rating prior to December 3, 2010, for hypertension. In the March 2015 JMR, the Court concluded that the Board erred in failing to address whether, pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note (3), a separate disability rating was warranted for left ventricular hypertrophy, which was shown by the medical evidence to be a complication of hypertension. See May 2011 VA examination. The Veteran was last afforded a VA cardiovascular examination in May 2011, in which the examiner diagnosed the Veteran with hypertension, with a heart complication of left ventricular hypertrophy. However, the examiner did not indicate the nature, severity, and all symptoms, if any, of the Veteran's left ventricular hypertrophy; therefore, the May 2011 VA cardiovascular examination is inadequate for purposes of evaluating the left ventricular hypertrophy. In light of the March 2015 JMR, and because the May 2011 VA examination did not provide enough detail for rating purposes, the Board concludes that the Veteran should be afforded a new VA cardiovascular examination to determine the nature and severity of the Veteran's left ventricular hypertrophy. 38 C.F.R. § 4.2. It is noted that the issue of entitlement to a separate disability rating for left ventricular hypertrophy, as secondary to service-connected hypertension, may involve cardiovascular symptoms that may or may not be attributed to the nonservice-connected hypertensive renal disease and microalbuminuria. As noted above, the matter of entitlement to service connection for hypertensive renal disease and microalbuminuria, to include as secondary to hypertension, has been referred to the AOJ again for appropriate action. As such, the issue of entitlement to a separate disability rating for left ventricular hypertrophy, as secondary to service-connected hypertension, is inextricably intertwined with the matter that the Board has referred to the AOJ. Accordingly, the Board remands the issue of entitlement to a separate disability rating for left ventricular hypertrophy, as intertwined with the matter of entitlement to service connection for hypertensive renal disease and microalbuminuria, to include as secondary to hypertension. Accordingly, the case is REMANDED for the following action: 1. Please contact the Veteran and request that he submit or authorize the release of any outstanding records relevant to his cardiovascular health. Attempts should be made to obtain identified records. All attempts to fulfill this development should be documented in the claims file. 2. Please obtain VA treatment records from January 2015 to present. 3. Afterwards, please schedule the Veteran for a VA cardiovascular examination to determine the current nature and severity of the Veteran's left ventricular hypertrophy. Forward the claims file to the examiner for review of the case. The examiner is asked to note that this case review was performed. After performing all necessary testing, the examiner is asked to please provide an opinion as to the nature, severity, and all symptoms of the Veteran's left ventricular hypertrophy during the entire appeal period (March 2001 to present). a. For purposes of this opinion, the examiner is requested to attempt (to the extent possible) to distinguish the effects of the left ventricular hypertrophy, which is shown to be a complication of hypertension, and any nonservice-connected cardiovascular disability. The examiner is asked to note if it is not possible to attribute the Veteran's symptoms to each disability separately. b. For purposes of this opinion, the examiner is asked to please provide an opinion as to the initial date of onset of any symptoms attributed to the Veteran's left ventricular hypertrophy during the entire appeal period (March 2001 to present) as shown by the record, and including commentary as to the severity thereof. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Please note that the May 2011 VA examination is inadequate as the examiner noted the complication of left ventricular hypertrophy but did not address the symptoms thereof. 4. Thereafter, adjudicate the claim on appeal and furnish the Veteran and his representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the case is returned to the Board. Note that the issue on appeal is intertwined with the matter of entitlement to service connection for hypertensive renal disease and microalbuminuria, to include as secondary to hypertension, which has been referred to the AOJ. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ MICHAEL A. PAPPAS 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).