Citation Nr: 1753762 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-28 717A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife (M.M.) ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1987. This matter comes before the Board of Veterans' Appeals (the Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In September 2017, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), during which time the Veteran and his representative clarified that this was the sole issue on appeal. A transcript of the hearing is associated with the claims file. 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). In October 2017, the Veteran filed a claim for entitlement to a temporary total evaluation for convalescence status, post heart surgery. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran was last examined for his coronary artery disease in April 2011. While the mere passage of time is not a basis for requiring a new examination, the Veteran and his representative have submitted evidence indicating that the Veteran's heart condition has worsened. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see e.g., August 2012 Cardiology Treatment Note; September 2017 Board Hearing Transcript. Significantly, the Veteran stated that he now becomes easily fatigued with mild activity. This statement indicates a worsening of the disability. Therefore, the Board finds that a remand is necessary to assess the current severity of the Veteran's service-connected coronary artery condition. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of a veteran's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination-particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). While on remand, the RO also should attempt to obtain the Veteran's updated VA treatment records and any relevant private medical records. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claim, including any private treatment records following proper VA procedures. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) (2016). 2. After completing the requested development, arrange for the Veteran to undergo a VA examination to evaluate the nature and severity of his coronary artery disease. A copy of this remand and all relevant medical records should be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. All testing indicated by the current Disability Benefits Questionnaire format must be addressed. In assessing the current nature and severity of the Veteran's coronary artery disease, the examiner is asked to address the extent to which the functional impairment caused by the Veteran's heart condition alone impairs his ability to meet the demands of a job, whether sedentary or physical, and the time frame in which such impairment arose. All opinions and conclusions reached by the examiner should be thoroughly explained. 3. Finally, after completing the above actions, as well as any other development that may be warranted, the RO must readjudicate the Veteran's claim in light of all the evidence of record. If any benefit on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ A. C. MACKENZIE 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).