Citation Nr: 1553868 Decision Date: 12/28/15 Archive Date: 01/07/16 DOCKET NO. 14-21 324 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to an initial rating in excess of 10 percent for coronary artery disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1963 to November 1966. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2013 rating decision in which the RO, inter alia, granted the Veteran's claim for service connection for coronary artery disease and assigned an initial rating of 10 percent, effective October 18, 2013. In December 2013, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2014 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. As the Veteran disagreed with the initial rating assigned following the award of service connection for coronary artery disease, the Board has characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In October 2015, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge at the RO. A hearing transcript has been associated with the record. This appeal has been processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Board notes that, in addition to the VBMS file, the Veteran has a separate paperless, electronic Virtual VA file, which includes VA treatment records dated through April 2014; such records were considered in the May 2014 SOC. The remaining documents in Virtual VA consist of various adjudication documents that are either duplicative of those contained in the VBMS file or irrelevant to the issue on appeal. For reasons expressed below, the matters on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action on this claim is warranted. The Veteran was last afforded a VA examination in November 2013 to determine the nature and severity of his service connected coronary artery disease. However, during the October 2015 Board hearing, the Veteran testified that his coronary artery disease had worsened since his last examination as he had shortness of breath, dizziness, occasional chest pain and arm pain. The Board notes that the November 2013 VA examination report indicates that the Veteran had denied experiencing cardiac symptoms with any level of physical activity and no other symptoms were reported. Considering the Veteran's testimony in conjunction with the period of time since the 2013 examination, the Board finds that the evidence suggests the possible worsening of his disability, warranting re-examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran is hereby notified that failure to report for the scheduled examination, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655 (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to accomplishing actions responsive to the above, to ensure that all due process requirements are met, and that the record is complete, and the AOJ should undertake appropriate action to obtain and associate with the electronic claims file (now consisting of paperless records in VBMS and Virtual VA) all outstanding, pertinent records which may bear on the claim on appeal. As regards VA records, the claims file currently includes outpatient treatment records from the Cheyenne VA Medical Center (VAMC) dated through April 2014. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). To ensure that all outstanding VA records are obtained, the AOJ should obtain from the Cheyenne VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran since April 2014, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2015) with regard to requests for records from Federal facilities. The AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Adjudication of the higher rating claim should include consideration of whether any "staged rating" of the disability (assignment of different ratings for distinct periods of time, based on the facts found), is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Cheyenne VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since April 2014. Follow the procedures set forth in 38 C.F.R. § 3.159(c) (2015) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically, request that the Veteran furnish, or furnish authorization to obtain, all outstanding, pertinent private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo a VA cardiac examination, by an appropriate VA physician, for evaluation of his service-connected coronary artery disease. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. The physician designated to conduct this examination should be different than the physician who had conducted the November 2013 examination. All appropriate tests and studies (to particularly include metabolic equivalents (METs) and ejection fraction measurements, as well as, symptoms experienced upon diagnostic testing) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render all appropriate findings responsive to the applicable criteria for evaluating coronary artery disease. Based on a comprehensive review of the evidence of record, the examiner should indicate whether, at any point since the October 18, 2013 effective date of the award of service connection, the Veteran's disability had changed in severity; and, if so, the approximate date(s) of any such change(s), and the level of severity of the disability at each stage. All examination findings/testing results, along with complete, clearly-state rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence and legal authority (to include consideration of whether staged rating of the disability is warranted). 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999)). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 this appeal. 38 C.F.R. § 20.1100(b) (2015).