Citation Nr: 1752924 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-07 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 60 percent for coronary artery disease prior to August 5, 2005 and in excess of 30 percent from that date. 2. Entitlement to initial disability evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to initial disability evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969 with honorable service in the Republic of Vietnam (RVN). He died in June 2012. The Appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that rating decision, the RO granted service connection and assigned and assigned initial ratings, effective January 2008 for coronary artery disease and effective October 2009 for the lower extremity neuropathies. In a May 2011 rating decision, the RO noted that the previous grant of service connection for coronary artery disease had been made as secondary to service-connected diabetes mellitus; however, service connection was now warranted on a direct basis as a result of herbicide exposure. 38 C.F.R. § 3.309 (2017). Thus, service connection for coronary artery disease was established, effective October 30, 2002. The disability was evaluated as 60 percent from October 20, 2002 and 30 percent from August 5, 2005. The Veteran had perfected his appeal as to the May 2010 rating decision. In July 2012, the appellant submitted a timely claim for dependency and indemnity compensation (DIC). In May 2013, service connection for the cause of death was granted. However, no notice of determination was made regarding the appellant's substitution as the claimant in the Veteran's case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In accord with 38 U.S.C. § 5121A, it is VA's policy to accept applications for accrued benefits, such as claims for DIC, as applications for substitution as claimant if filed within one year of the Veteran's death. 38 U.S.C. § 5121A (2012). Determinations of eligibility for substitution are made by the AOJ in the first instance. The Veteran filed a substantive appeal in March 2012, which initiated his appeal to the Board. However, the Veteran died prior to the RO certifying the appeal to the Board. Although, service connection has been for the Veteran's cause of death, no formal notice of substitution determination was issued as to the appellant's eligibility or status as a substitute claimant before certifying and forwarding the Veteran's appeal to the Board. On remand the AOJ should issue a notice of determination as whether the appellant is substituted as the claimant for the Veteran's pending appeal. If, the AOJ determines that the appellant should be substituted as the claimant, additional development of the record is required before a final decision can be made. The appellant's representative argues that treatment reports that could support an increased rating for coronary artery disease are not of record, but appear to have been considered in a March 2010 VA medical opinion. The representative further contends that the examiner did not adequately distinguish disability related to the service-connected coronary artery disease and nonservice-connected hypertension. The representative argues that the Veteran's cardiac related symptoms were so inextricably intertwined between the hypertension, coronary artery disease and diabetes that they could not be separated and therefore reasonable doubt must be given to the Veteran. There are no medical treatment records, by VA or private physicians, associated with the Veteran's file prior to June 2002. The file only consists of VA medical treatment records making it unclear how the prior examiners reached their conclusion. On remand, the RO should attempt to identify and obtain any outstanding medical treatment records for diabetes, hypertension and coronary artery disease prior to June 2002. Additionally, in October 2017, the appellant submitted evidence, not previously considered, comprising of an article published by the National Institutes for Health (NIH). The peer reviewed article raises the issue that hypertension may be inextricably intertwined with coronary artery disease in causing CHF. A waiver was not provided with the submission of the evidence. Since this case is being remanded for a supplemental opinion, the examiner should review and discuss the article as it pertains to the etiology of the Veteran's disabilities. In the October 2017 informal hearing presentation, the appellant's representative raised the issue of clear and unmistakable evidence (CUE) regarding the effective date of the grants of service connection for the neuropathies. On remand the AOJ should have the opportunity to consider the appellant's claim of CUE in the first instance. Adjudication of the issues of increased rating for the neuropathies should be deferred until that issue is addressed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should make a determination for the record whether the appellant is substituted as the claimant for the pendency of this appeal. If the request for substitution is denied, the Appellant should be advised of her appellate rights. 2. If the Appellant's request for substitution is denied, the AOJ should readjudicate the Veteran's pending claims for accrued benefits purposes only, considering the evidence in the claims file as it stood at the time of the Veteran's death, to include any newly-associated VA treatment records which are considered to have been constructively of record at that time. 3. If the Appellant's request for substitution is granted, the AOJ should take the following steps: (a) Contact the appellant and obtain the names and addresses of all medical care providers who treated the Veteran prior to June 2002. Then after securing any necessary releases, the AOJ should obtain these records, including from VA. Obtaining VA medical records prior to June 2002 should occur regardless of the outcome outlined in step one above. (b) Then, after allowing an appropriate amount of time for a response, forward the record to an appropriate VA examiner for a supplemental opinion. The claims file, including a full copy of this remand, must be made available to the examiner for review. After reviewing the record, the examiner should answer the following: (i) identify the severity of the coronary artery disease from October 2002. In doing so, attempt to distinguish symptomatology and effects related to the coronary artery disease from any related to hypertension. If such a distinction is not possible, the examiner should specifically indicate why. 3. After conducting any other development deemed necessary, re-adjudicate the Veteran's claims, including the claimant's CUE claim for peripheral neuropathy raised by the IHP submitted in October 2017. If any benefit remains denied, issue an SSOC, and give the appellant and her representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (West 2012). _________________________________________________ M. E. LARKIN 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) (2017).