Citation Nr: 1752760 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-18 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected coronary artery disease (CAD) post stent placement and myocardial infarction prior to October 9, 2013. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In August 2016, the Board issued a decision that (in pertinent part) denied entitlement to an initial rating in excess of 10 percent for service-connected CAD for the portion of the period on appeal prior to October 9, 2013. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In April 2017, the Office of General Counsel for the Department of Veterans Affairs and the Veteran's representative (hereinafter "the parties") filed a Joint Motion for Partial Remand (Joint Motion) that was granted by the Court in May 2017. The portion of the August 2016 Board decision that denied entitlement to an initial rating in excess of 10 percent for CAD prior to October 9, 2013 was vacated, and the case has now been returned to the Board for further consideration in accordance with the terms of the Joint Motion. The Board's August 2016 decision additionally (1) granted a 60 percent rating for CAD effective from October 9, 2013; (2) denied an earlier effective date prior to August 31, 2010 for the grant of service connection for CAD; and (3) denied entitlement to a compensable rating for bilateral hearing loss. The Joint Motion granted by the Court expressly requests that these determinations not be disturbed, and those issues are not to be revisited by the Board at this time. The Board observes, in passing, that during the pendency of this matter, the RO issued a statement of the case addressing another issue (entitlement to an increased rating for posttraumatic stress disorder) in August 2017. The claims-file does not reflect that the Veteran perfected an appeal of that matter to the Board, and no appeal on this issue has been certified to the Board for review. Accordingly, that matter is not before the Board at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Joint Motion discusses that "[t]he parties agree that the Board erred by relying solely on the date of the VA examination as the [] effective date of the increased rating for CAD," noting that "[t]he Court in McGrath v. Gober held that 'the date the evidence is submitted or received is irrelevant when considering the effective date of the award.' 14 Vet.App. 28, 35 (2000)." The Joint Motion further discusses that "[t]he parties additionally agree that the Board failed to provide an adequate statement of reasons or bases for the finding that the duty to assist had been met." Pertinent to both findings, the Joint Motion explains that "the October 2013 VA examiner noted that Appellant had three hospital admissions.... However, records of these hospitalizations have not yet been obtained." The Board notes that there is some confusion presented by the pertinent information presented in the October 2013 VA examination report in this case. In the "Medical History" section of the report, the discussion does indicate that "[t]he condition has worsened with 3 hospital admissions ...." However, the VA examination report elsewhere lists the Veteran's pertinent hospitalizations as featuring only his 2008 treatment for myocardial infarction at Riverside Community Hospital, with a box marked to indicate "No" with regard to whether the Veteran had any other hospitalizations for the treatment of heart conditions beyond those indicated in the report. In January 2014, the RO sent a letter to the Veteran requesting that he "return the enclosed VA Form 21-4142, Authorization and Consent to Release Information[] for Riverside Kaiser so that we can obtain your treatment information in support of your Notice of Disagreement." In April 2017 (significantly after the Board's now-vacated August 2016 decision), the Veteran's representative submitted a completed VA Form 21-4142a authorizing the release of records from that medical facility. To ensure that the record is complete and that the concerns raised by the Joint Motion are entirely resolved (including giving the Veteran the opportunity to clearly identify all of the medical facilities associated with his reported hospitalizations for heart treatment), the Board finds that a remand is warranted to complete the appropriate actions of soliciting the information from the Veteran and fulfilling the duty to assist the Veteran in obtaining any pertinent outstanding private medical records in this case. Accordingly, the case is REMANDED for the following action: 1. The AOJ should make another attempt to contact the Veteran and ask him to identify all VA and non-VA sources of medical treatment prior to October 2013 for his service-connected heart disability, with sufficient information to identify the health care providers and, if necessary, signed authorization to enable VA to obtain any additional evidence from non-VA providers. In particular, the Veteran should be specifically asked to identify the timing and each health care provider involved in the "3 hospital admissions" the Veteran reported during the October 2013 VA examination. If the Veteran adequately identifies the health care providers and provides the completed authorizations, the AOJ should request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. (This development of the evidence should include completion of the efforts currently in progress to obtain records from "Kaiser Permanente Riverside Medical Center" in accordance with the Veteran's April 2017 request.) 2. After completion of the above and any additional development the AOJ may deem necessary, the AOJ should review the expanded record and readjudicate the claim remaining on appeal. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board, if in order, for further 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 (West 2014). _________________________________________________ M. C. GRAHAM 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) (2016).