Citation Nr: 1753335 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-00 385A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 60 percent for service-connected hypertensive heart disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1975 to November 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a June 2012 rating decision, the Veteran's claim for a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) was denied. The Veteran did not appeal that rating decision. However, a TDIU claim is part of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the TDIU claim remains part of the increased rating claim. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran is in receipt of a 60 percent rating under diagnostic code 7007 for hypertensive heart disease. The Veteran contends that he is entitled to a higher evaluation for his service-connected hypertensive heart disease. Under Diagnostic Code 7007, a 100 percent rating is warranted for hypertensive heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. The Veteran was last afforded a VA examination in June 2014 to assess the severity of his service-connected hypertensive heart disease. The Board finds that this examination is inadequate to decide the claim. To that end, the examination did not include left ventricular ejection fraction testing. Moreover, an interview based METs test was performed, which the examiner determined 1-3 METs produced dyspnea, fatigue, angina, dizziness, or syncope. However, the examiner reported that the Veteran's METs score was a result of his bilateral hip replacements, and no estimation was given as to what the Veteran's METs level was due solely to his service-connected hypertensive heart disease. As a result, the Board is without adequate information as pertaining to the requirements set forth for a higher evaluation under Diagnostic Code 7007. The Board also notes that the issue of entitlement to TDIU is inextricably intertwined with the increased evaluation claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final disposition of the claim for an increased evaluation for hypertensive heart disease. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected hypertensive heart disease. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, schedule the Veteran for a VA examination to determine the severity of his service-connected hypertensive heart disease. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, prior VA examination reports, and lay statements and assertions. The examiner is requested to provide diagnostic METs scores as to the impact of the Veteran's service-connected hypertensive heart disease. If these tests cannot or should not be undertaken, the examiner should provide an explanation of such finding, as well as an estimation of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope. It is insufficient for the examiner to only note that the Veteran does not experience symptoms with any level of physical activity as a reason for not providing METs scores. Moreover, the examiner should conduct whatever test deemed necessary in order to measure the Veteran's left ventricular ejection fraction. If such tests cannot be performed, the examiner must explain why such testing could not be performed. In addition to objective test results, the examiner should fully describe the functional effects caused by the Veteran's hypertensive heart disease in the final report of the evaluation. The examiner is also asked to address the functional effect that the Veteran's service-connected hypertensive heart disease has on his ability to secure or follow a substantially gainful occupation. When addressing the functional effects the examiner should consider the Veteran's educational and vocational history, but must not consider the Veteran's age or the effects of any non-service connected disabilities. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review. 3. In the event that the Veteran does not report for the any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address and to his representative, if applicable. It should also be indicated whether any notice sent was returned as undeliverable. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs to include any necessary development as to the Veteran's claims, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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).