Citation Nr: 1757713 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 09-36 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an earlier effective date prior to December 26, 2010 for the grant of service connection for ischemic heart disease. 2. Entitlement to a higher initial rating for service-connected ischemic heart disease, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970, including service in the Republic of Vietnam. This case came to the Board on appeal from a June 2013 RO decision that granted service connection and a 10 percent rating for ischemic heart disease effective from January 1, 2011. The Veteran appealed for a higher initial rating and for an earlier effective date. A videoconference hearing was held in May 2014 before the undersigned Veterans Law Judge (VLJ) of the Board and a transcript of this hearing is of record. In an August 2014 decision and remand, the Board in pertinent part, granted an earlier effective date of December 26, 2010 for the award of service connection for ischemic heart disease, and remanded the issue of entitlement to a higher rating for ischemic heart disease for additional claim development. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2016 memorandum decision, the Court vacated only that part of the Board's August 2014 decision that denied entitlement to an earlier effective date prior to December 26, 2010 for the grant of service connection for ischemic heart disease, and remanded that issue to the Board for readjudication consistent with its decision. This appeal was subsequently returned to the Board and remanded in a September 2016 Board decision for compliance with the January 2016 memorandum decision. In its August 2014 decision, the Board also remanded the issue of entitlement to a higher initial rating for ischemic heart disease to the Agency of Original Jurisdiction (AOJ) for additional development. While this issue was in remand status, in an October 2014 rating decision, the AOJ effectuated the grant of an earlier effective date of December 26, 2010 for the award of service connection for ischemic heart disease. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance, specifically compliance with the terms of the January 2016 Court memorandum decision. As discussed above, the Veteran's increased rating claim was remanded in August 2014 and September 2016, while his earlier effective date claim was remanded in September 2016. The August 2014 remand decision directed the AOJ to contact the Veteran and provide him to opportunity to submit release authorization for VA and private treatment providers for his ischemic heart disease, and in particular to try to obtain the a copy of the thallium stress test report completed in December 2010. Additionally, the September 2016 Board remand decision directed the AOJ to provide additional release authorizations requesting the exact date and treatment provider of the stress test administered in 2005 (a record which was specifically addressed by the Court in its January 2016 memorandum decision). The September 2016 Board remand decision further directed the AOJ to procure the 2005 and December 2010 stress test reports if the release authorization was submitted by the Veteran. The September 2016 Board remand instructions specifically stated that if a release authorization was returned, two attempts should be made to obtain the Veteran's outstanding 2005 stress test and December 2010 stress test results, unless a formal finding could be made such that a second request for such records would be futile. When the Board remands a claim to the RO it has a duty to ensure substantial compliance with the directives contained in that remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As the foregoing applies to the issues on appeal, a review of the record reveals that the Veteran was contacted and asked to identify the date and treatment provider of the 2005 stress test and also to include information as to the December 2010 thallium stress test. The Veteran was also provided a release authorization. Although the Veteran did not return the release authorization initially, he had previously submitted a release authorization in April 2016 for the procurement of relevant treatment records from Mercy Hospital from May 2005 to February 2012 and from November 2012 to the present date. In May 2017, the Veteran was informed that his previously submitted release authorization was expired. In May 2017, the Veteran submitted a new release authorization for private treatment records from June 2006 to January 2012, and a general records request for treatment within that timeframe was sent to the Veteran's private treatment provider. Several pages of treatment records were provided in response to the records request. However, these records do not contain the December 2010 thallium stress test report, and a second attempt to procure the December 2010 thallium stress test report was not made. Accordingly, the Board finds that remand of the Veteran's earlier effective date claim is required so that the AOJ can make a second attempt to procure a copy December 2010 thallium stress test report. Additionally, as a review of the record reveals that the Veteran underwent stent surgery for his heart in January 2012 and the Veteran's October 2016 addendum opinion notes a report of resolved angina/chest pain following stent placement, the contents of the Veteran's December 2010 thallium stress test may provide relevant evidence with regard to the Veteran's increased rating claim. As such, remand of both the Veteran's earlier effective date and his increased rating claims is required. Accordingly, the case is REMANDED for the following action: 1. Make a second attempt to procure the Veteran's December 2010 thallium stress test report from the Veteran's private treatment provider identified in the May 2017 release authorization. The AOJ is advised that it should make a specific request for the outstanding December 2010 thallium stress test report. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 2. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims 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 (2012). S. L. Kennedy 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).