Citation Nr: 1751776 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-09 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a rating in excess of 30 percent for arteriosclerotic heart disease (AHD) beginning January 28, 2014. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) from January 28, 2014. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from September 1965 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2015 decision, the Board denied a rating in excess of 10 percent for AHD prior March 2, 2011, a rating in excess of 30 percent from March 2, 2011, to November 9, 2012, a rating in excess of 60 percent from August 6, 2013 to January 27, 2014, and a rating in excess of 30 percent effective January 28, 2014. The Veteran appealed the decision, to the extent that it denied a rating in excess of 30 percent beginning January 28, 2014, to the U.S. Court of Appeals for Veterans Claims (Court). The Veteran did not appeal the Board's decision regarding his AHD rating for any period prior to January 28, 2014 or the Board's finding that referral for extraschedular consideration was not warranted. In a June 2017 Joint Motion for Partial Remand (JMR), the parties agreed to vacate and remand that portion of the Board's decision denying a rating in excess of 30 percent beginning January 28, 2014. A Court Order later that month granted the JMR and vacated and remanded the claim to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The JMR found that the December 2015 Board decision did not sufficiently address whether the July 2015 VA examination report was adequate for rating purposes to the extent it relied upon a January 28, 2014, echocardiogram to find that the Veteran's left ventricular ejection fraction (LVEF) was 63 percent. The JMR also noted that the Board did not adequately explain the significance of the different testing procedures used to obtain the August 2013 and January 2014 LVEF results. Subsequent to the JMR, a September 2017 letter from Dr. Baklajian indicated that it was very likely that the Veteran had stress induced left ventricular systolic dysfunction with an ejection fraction (EF) less than percent. The opinion relies upon the August 2013 EF results but does not explain why those findings more accurately reflected the Veteran's current EF in light of the January 2014 or January 2016 EF results, which were both above 50 percent. Accordingly, a remand for a VA heart examination is necessary to address the significance of the different testing procedures used to obtain the August 2013 and January 2014 LVEF results and to reconcile the conflicting findings in Dr. Baklajian's September 2017 opinion. There are also outstanding VA treatment records. VA treatment records from October 27, 2016, and April 12, 2017, indicate that non-VA medical records were scanned into VistA Imaging. The referenced records have not been associated with the claims file. As the Board cannot exclude the possibility that the records are relevant to the pending claims, on remand the VistA Imaging records and any updated VA treatment records must be associated with the claims file. With regard to the Veteran's TDIU claim, the Veteran reports that his employment is marginal because he is employed only seasonally on a part time basis. To date, this issue has not yet been fully developed or adjudicated by the AOJ. Accordingly, it is remanded for initial development and adjudication. Finally, the record indicates that the Veteran receives ongoing private treatment for his AHD. On remand reasonable efforts should be made to obtain any updated private treatment records. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(2017). Expedited handling is requested.) 1. Obtain any available updated VA treatment records dated since September 7, 2017, as well as the VistA Imaging records referenced in October 27, 2016, and April 12, 2017, VA treatment records, and associate them with the claims file. 2. Ask the Veteran to provide the names and addresses of all private medical care providers who have recently treated him for his heart disability, to include Dr. Baklajian. After securing any necessary releases, the AOJ should request any relevant records identified that have not already been associated with record. If any requested records are not available, the Veteran should be notified of such. 3. Complete all appropriate development related to the Veteran's claim for entitlement to a TDIU. 4. Schedule the Veteran for a VA heart examination to assess the current severity of his service-connected AHD. The Veteran's claims folder should be reviewed. All indicated tests and studies, including METs and LVEF testing, should be conducted. All pertinent symptomatology and findings should be reported in detail. The examiner should provide an opinion as to the appropriate disability level suggested by the August 2013 LVEF, Dr. Coletti's September 2013 letter, the January 2014 LVEF, and Dr. Baklakian's September 2017 letter. In rendering this opinion, the examiner should specifically discuss the significance in the different testing used to obtain the August 2013 LVEF (adenosine testing and standard Bruce protocol) and January 2014 LVEF (2-D echocardiogram). The examiner should also address how the Veteran's AHD impacts his ability to perform sedentary and non-sedentary employment. A rationale for all conclusions and opinions should be provided. 5. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).