Citation Nr: 1544894 Decision Date: 10/21/15 Archive Date: 10/29/15 DOCKET NO. 14-13 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. The Board notes that additional VA treatment records have been added to the claims folder following the most recent Statement of the Case (SOC) in February 2014. There is no waiver of agency of original jurisdiction (AOJ) consideration of this evidence in the first instance. As this case is being remanded, the AOJ must consider the additional evidence received when it readjudicates the claim. 38 C.F.R. § 20.1304(c) (2015). A review of the Virtual VA paperless claims processing system includes VA treatment records dated from December 1999 to April 2014. Other documents on Virtual VA are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System (VBMS) does not contain any documents pertaining to the Veteran. The appeal is REMANDED to the AOJ. The VA will notify the appellant if further action is required. REMAND The Veteran essentially contends that he is unemployable due to his service-connected ischemic heart disease. A review of the record shows that service connection is currently in effect for the Veteran for ischemic heart disease, rated as 60 percent disabling, and bilateral hearing loss, rated as noncompensable. As the Veteran's service-connected ischemic heart disease is rated as 60 percent disabling, the Veteran meets the threshold requirement for obtaining a schedular TDIU. 38 C.F.R. § 4.16(a). In a VA Form 21-8940, dated in March 2012, the Veteran claimed that he last worked as a mechanic in 2007 and that his service-connected ischemic heart disease prevented him from securing or following any substantial gainful employment. Additionally, the Veteran noted that his total earned income for the twelve months prior to March 2012 was $0 "after write offs." The Veteran also indicated that he completed high school. While the Veteran asserted that he had not tried to obtain employment since he became too disabled to work, he also provided that he was attempting to work as a self-employed mechanic for approximately twelve to fifteen hours per week. The Veteran was diagnosed with ischemic heart disease, status post myocardial infarction, in 2007. Private treatment records dated in December 2007 show that the Veteran underwent a cardiac catheterization procedure and had three stents placed in his coronary arteries. September 2011 private treatment records provide that the Veteran underwent a cardiac catheterization procedure after he experienced left arm weakness and heaviness for three days. The September 2011 private treatment records indicate that the Veteran had been "working fairly hard during those days," but the physician also noted that the Veteran did not have to curtail his activity while he felt the symptoms and that the Veteran was "fairly active and ha[d] been working on a garage and car and it has not brought on his pain." The September 2011 private treatment records note that the Veteran was given permission to return to work one week after the cardiac catheterization procedure. In a February 2012 VA opinion, the VA examiner listed a diagnosis of unstable angina in addition to ischemic heart disease. The VA examiner opined that the Veteran's ischemic heart disease impacted his ability to work. Specifically, he noted that the Veteran was working part-time as an auto mechanic, two to three days per week, and that he "couldn't continue to work full-time with [his] heart condition." The Veteran was afforded a VA examination in April 2013 for his TDIU claim. In his examination report, the VA examiner opined that the Veteran's ischemic heart disease "does not impose significant functional impairment to preclude all forms of non-sedentary employment." The VA examiner explained that although the Veteran's ischemic heart disease may result in chest pain and dyspnea following exertion, such as lifting heavy objects or performing other strenuous tasks, "it does not preclude him from light duty, such as sitting at a desk, answering the telephone or performing other light office type work." In an April 2013 VA cardiac examination, the Veteran stated that he had "plugged stents" and that he was "last seen by [a] local cardiolog[ist] in March 2013." The Veteran reported chest pain with strenuous activity, providing that if he were to "pull off all 4 tires, [he would] probably have [chest pain]." The Veteran also indicated that he "r[an] his own garage" and was working "very part-time." In the April 2013 cardiac examination report, the VA examiner noted that available medical records detailing the Veteran's service-connected heart disability were from the period dating from September 21, 2011 to October 31, 2011, and that there were otherwise no new medical records. The VA examiner opined that the Veteran's service-connected cardiac disability affects his ability to work by impacting his ability to perform strenuous physical activity. In a March 2013 VA primary care treatment, the Veteran reported that he believed "his arteries [were] plugged more because he [was] less physically active." The VA nurse practitioner noted that the Veteran was "not working much" and that he had a "local cardiologist." According to VA primary care treatment records dated in April 2014, the Veteran's chief complaint was that his "stents [were] all plugged up," and he stated that his understanding was that "the only way to fix [him] is with open heart surgery." The VA physician noted that the Veteran "sees Dr. C[.]" In light of the above information, the Board finds that a remand is necessary. Based on the Veteran's representations that he saw a local cardiologist in March 2013, and the VA physician's April 2014 note that the Veteran "sees Dr. C[.]," there is a possibility that there are outstanding private medical records pertaining to the Veteran's claim, as the most recent private medical records in the claims file are dated in September 2011. Additionally, there do not appear to be treatment records pertaining to the Veteran's heart disability that are signed by, or attributed to, Dr. C. Therefore, a remand is necessary to allow the Veteran to adequately identify any relevant private medical records and for the VA to make reasonable efforts to obtain such records. See 38 U.S.C.A. § 5103A(b)(1) (West 2014). There is also evidence establishing that the Veteran has received medical treatment since the RO issued its February 2014 Statement of the Case (SOC). Based on the February 2014 SOC, the RO reviewed VA treatment records dated from December 1999 to October 2013. However, in February 2014, the Veteran received treatment from a VA primary care physician, where he complained that his "stents [were] all plugged up," and indicated that a private physician may have recommended that the Veteran undergo open heart surgery. As such, there remains a possibility that the Veteran's service-connected ischemic heart disease has worsened since his most recent April 2013 VA examination and thus affects his employability beyond that contemplated by the VA examiner. A remand is therefore necessary to afford the Veteran a new VA examination to determine whether current manifestations associated with his service-connected ischemic heart disease render him unable to secure or follow a substantially gainful occupation, see 38 C.F.R. § 3.159(c)(4), and for the AOJ to consider any new treatment records. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See Geig v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Accordingly, the focus of the examiner is not on whether the Veteran is unemployable due to his service-connected disability, but rather on the functional impairment caused solely by his service-connected disabilities. See VBA Fast Letter 13-13 (June 17, 2013). While on remand, updated VA treatment records, if any, must be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records as set forth by 38 C.F.R. § 3.159(c). If the VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed, provide the claims file to an appropriate medical professional who is qualified to offer an opinion regarding the functional impact resulting from the Veteran's service-connected heart disability. The examiner should review the claims file, including any electronic records in Virtual VA and VBMS, and discuss the functional impairments associated with, and expected effect on employment resulting from, the Veteran's service-connected ischemic heart disease, taking into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by non-service-connected disabilities. If the examiner opines that the Veteran's service-connected ischemic heart disease results in functional impairments, the examiner should suggest the type or types of employment in which the Veteran may engage. In rendering an opinion, the examiner should address any findings from previous VA examinations and treatment records. All opinions should be accompanied by a supporting rationale. 3. After the development has been completed, the AOJ should re-adjudicate the Veteran's claim for a TDIU. If the benefit sought remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review. 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. _________________________________________________ DAVID L. WIGHT 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) (2015).