Citation Nr: 1804017 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-12 735 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for status post excisions, squamous cell carcinomas, left leg. 2. Entitlement to an initial rating in excess of 10 percent prior to April 28, 2016 and a rating in excess of 60 percent from that date , for coronary artery disease (CAD), status post myocardial infarction with multiple stent placements and bypass with surgical scar. 3. Entitlement to an initial rating in excess of 20 percent prior to October 3, 2013 and a rating in excess of 40 percent from that date , for type II diabetes mellitus with and erectile dysfunction. 4. Entitlement to an initial rating in excess of 10 percent peripheral neuropathy of the right lower extremity. 5. Entitlement to an initial rating in excess of 10 percent peripheral neuropathy, left lower extremity. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected CAD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to July 1969. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2013 rating decision in which the RO, inter alia, denied service connection for status post excisions, squamous cell carcinomas, left leg and psoriasis; granted service connection for peripheral neuropathy of right and left lower extremities with an initial 10 percent rating from August 15, 2012 for each extremity; and denied higher initial ratings for Type II diabetes mellitus, and CAD. In July 2013, the Veteran filed a notice of disagreement (NOD) with respect to the service connection claim for squamous cell carcinomas, left leg and psoriasis; and to the higher initial rating claim for CAD. In January 2014, the RO issued a statement of the case (SOC) for these claims. In April 2014, the Veteran filed a substantive appeal, via a VA Form 9, Appeal to the Board of Veterans' Appeals. Notably, the Veteran limited his appeal to the service connection claim for squamous cell carcinomas, left leg and to the higher initial rating claim for CAD. The issue of service connection for psoriasis was excluded from the substantive appeal and is not currently before the Board. 38 C.F.R. §§ 20.200, 20.202. In April 2014, the Veteran filed a NOD with respect to higher initial ratings for diabetes mellitus, Type II and peripheral neuropathy of right and left lower extremities. In May 2016, the RO issued a SOC for these issues. In July 2016, the Veteran filed a substantive appeal, via a VA Form 9, Appeal to the Board of Veterans' Appeals for these issues. In April 2016, the RO, inter alia, granted rating of 40 percent for Type II diabetes mellitus, T effective October 3, 2013. In May 2016, the RO, inter alia, granted al rating of 60 percent for CAD effective April 28, 2016. In November 2016, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge at the Boston RO. A copy of the hearing transcript is of record. Following the hearing, the Veteran submitted additional evidence. As the Veteran's substantive appeal in this case was received after February 2, 2013, a waiver of initial RO consideration of this additional evidence is not required. See 38 C.F.R. §§ 20.800, 20.1304 (2017); see also Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015(e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). As regards characterization of the appeal, because the Veteran disagreed with the initial ratings assigned following the awards of service connection for the above-identified disabilities, the Board has characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Also, although the AOJ awarded higher ratings for type II diabetes mellitus and for CAD during the pendency of the appeal, as higher ratings for this disability are available before and after the effective date of each higher rating award, and the Veteran is presumed to seek the maximum available benefit for a disability, each claim for higher rating (now, characterized to reflect the staged ratings assign) remains viable on appeal. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). Further Also, as explained below, as the Veteran and his representative have asserted, and presented evidence indicating, that he is unemployable due to his service-connected CAD, the Board has expanded the appeal to include the matter of entitlement to a TDIU due to CAD. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board's disposition on the service connection claim for squamous cell carcinomas of the left leg is set forth below. The claims for a higher ratings for CAD, type II diabetes mellitus, and peripheral neuropathy of the right and left lower extremities, as well as the matter of the Veteran's entitlement to a TDIU due to CAD, are addressed in the remand following the order; these matters are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDING OF FACT During the November 2016 hearing, and prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw from appeal the claim for service connection for status post excisions, squamous cell carcinomas of the left leg. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to the claim for service connection for status post excisions, squamous cell carcinomas of the left leg are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, during the November 2016 hearing, the Veteran stated that he wanted to withdraw from appeal the claim for service connection for status post excisions, squamous cell carcinomas, left leg. That statement is reflected in the transcript of the hearing. Thus, no allegations of errors of fact or law remain for appellate consideration regarding this matter. Accordingly, the Board does not have jurisdiction to review this matter, and the appeal as to this claim must be dismissed. ORDER The appeal as to the claim for service connection for status post excisions, squamous cell carcinomas, left leg is dismissed. REMAND The Board's review of the claims file reveals that further action on the remaining matters on appeal is warranted. In April 2014, the Veteran reported that he had started experiencing angina and underwent another nuclear stress test with Dr. A.M. He was unable to walk as far on the treadmill in comparison to previous stress tests. He submitted December 2013 private medical records regarding cardiac catheterization. However, the submitted private medical records do not include the contemporaneous exercise stress test. Since the applicable rating criteria are based upon clinical exercise stress testing, the outstanding private exercise stress test records are highly relevant to the instant claim. See 38 C.F.R. § 4.104, Diagnostic Code 7006 (2017). In a November 2016 letter, the Veteran's private cardiologist reported that the Veteran last underwent a coronary stenting procedure in March 2015. In December 2016, Dr. I.Z. reported that he continued to treat the Veteran for diabetes and that he greatly increased the amount of insulin for treatment. These private medical records are also not of record as well and also appear highly relevant to the claims. VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA has undertaken to request that the claimant obtain the records. 38 C.F.R. § 3.159(e)(2) (2017). Since VA is now aware of these highly pertinent private medical records, the Veteran must be afforded an opportunity to submit the 2013 private exercise stress test ordered by Dr. A.M and the March 2015 coronary artery stenting procedure, in addition to updated private treatment records for diabetes from Dr. I.Z. Then, during the November 2016 hearing, the Veteran reported that his service-connected coronary artery disease and diabetes were progressing rapidly and significantly restricted his activities of daily living. November 2016 hearing transcript, p. 5. He submitted an October 2016 statement from his physician treating him for diabetes that stated the disease has had a rapid progression citing increasing amounts of insulin needed for management. He also submitted a November 2016 statement from his treating cardiologist documenting that he had been stable since the last stenting procedure in March 2015 and that the Veteran had retired from work in 2008 due to coronary artery disease. The Veteran was last afforded VA examinations for these disabilities and associated lower extremity peripheral neuropathy in April 2016. The passage of time alone does not require VA re-examination. See VAOPGCPREC 11-95; Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007). However, the hearing testimony and additional submitted medical evidence received since the last examinations indicate that these disabilities may have increased in severity since the prior examinations. Consequently, the Board finds that the Veteran should be afforded new VA examinations to obtain contemporaneous, pertinent information to assess the current nature and severity of his service-connected coronary artery disease, type II diabetes mellitus, I and associated right and left lower extremity peripheral neuropathy. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran is hereby notified that failure to report for any scheduled examination(s) without good cause, may well result in denial of the claim(s). See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. As for the TDIU claim, the Board notes that, in Rice, 22 Vet. App. at 453-54, the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is considered a component of a higher rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, during the November 2016 hearing, the Veteran asserted he was unemployable due to service-connected CAD. See November 2016 Board hearing transcript, p. 4. He submitted statements from a co-worker and treating cardiologist indicating that his CAD rendered him unemployable. Thus, the Veteran has sufficiently raised a claim for a TDIU due to CAD in this appeal. As favorable action on the CAD claim being remanded could favorably affect the TDIU claim, the Board finds that the issue of entitlement to a TDIU due to CAD is inextricably intertwined with the CAD rating claim. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As Board action on the claim for a TDIU due to CAD would be premature, at this juncture, this matter is being remanded, as well. Prior to accomplishing actions responsive to the above, to ensure that all due process requirements are met, and that the record is complete with respect to all claims, and the AOJ should undertake appropriate action to obtain and associate with the electronic claims file all outstanding, pertinent records which may bear on the claims on appeal. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Boston VA Medical Center (VAMC), and that records from this system dated through April 12, 2016 are associated with the Legacy Content Manager file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the Boston VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran dated since April 12, 2016, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims remaining on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization, for VA to obtain, records of heart disease treatment from any private (non-VA) provider(s) to specifically include all records associated with the 2013 exercise stress test and March 2015 coronary artery stent procedure and diabetes care records from Dr. I.Z. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted (to include arranging for the Veteran to under further examination, or otherwise obtaining medical comment, in connection with the TDIU claim) prior to adjudicating the claims on appeal. The AOJ should adjudicate the claims in light of all pertinent evidence, to particularly include that added to the electronic claims file since the last adjudications of the higher rating claims on appeal. Also, adjudication of each higher rating claim should include consideration of whether any, or any further, staged rating of the disability is appropriate. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Boston VAMC all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, dated since April 12, 2016. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate, current authorization to obtain, outstanding, pertinent private (non-VA) records, to include those concerning the g the 2013 nuclear stress test ordered by Dr. A.M. and March 2015 coronary artery stenting procedure that confirmed decreased exercise tolerance, as well as from any other provider providing heart disease or peripheral neuropathy treatment, and recent diabetes treatment records from Dr. I.Z. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159 (2017). All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo a VA cardiology examination, by an appropriate VA medical professional, for evaluation of his service-connected coronary artery disease. The contents of the entire electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated examiner, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All appropriate tests and studies (to particularly include metabolic equivalents (METs) and ejection fraction measurements, as well as, symptoms experienced upon diagnostic testing) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render all appropriate findings responsive to the applicable criteria for evaluating coronary artery disease. Also, based on a comprehensive review of the evidence of record, the examiner should indicate whether, at any point since the August 31, 2010 effective date of the award of service connection, the Veteran's disability had changed in severity; and, if so, the approximate date(s) of any such change(s), and the level of severity of the disability on each date. The examiner should also describe fully the functional effects of the Veteran's service-connected heart disease on his ability to perform the physical acts required for gainful employment. In doing so, the examiner may take into consideration the Veteran's level of education, special training, and work experience, but not his age or any impairment caused by nonservice-connected disabilities. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, to include statements from cardiologists as the impact of his CAD on his employability, and lay statements from the Veteran and his co-workers as to the nature and severity of his cardiac symptoms. All examination findings/testing results, along with complete, clearly-state rationale for the conclusions reached, must be provided. 5. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA examination ,by an appropriate medical professional, for evaluation of his service-connected Type II diabetes mellitus. The contents of the entire electronic claims file ( in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. In particular, the examiner must render specific findings as to whether the Veteran's diabetes mellitus does or has required insulin; a restricted diet, and/or a regulation of activities; whether the disability has resulted in a progressive loss of weight, and/or other complications; as well as whether the disability has involved episodes of ketoacidosis or hypoglycemic reactions, and, if so, the number of hospitalizations per year or number of monthly visits to a diabetic care provider required. Also, based on a comprehensive review of the evidence of record, the examiner should clearly indicate whether the claims file reflects any change(s) in the severity of diabetes mellitus since the March 31, 2011 effective date of the award of service connection; and, if so, the approximate date(s) of the change(s), and the severity of the disability as of each date. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA examination ,by an appropriate medical professional, for evaluation of his service-connected right and left lower extremity peripheral neuropathy.. The contents of the entire electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. For each lower extremity, the examiner should identify the nerve(s) affected by the Veteran's service-connected peripheral neuropathy, and assess identify whether each disability is mild, moderate, moderately severe, or severe in nature. The examiner should also discuss the extent, if any, of paralysis (or disability comparable to paralysis, including neuritis or neuralgia) of the nerves involved. Also for each lower extremity, based on a comprehensive review of the evidence of record, the examiner should clearly indicate whether the claims file reflects any change(s) in the severity of peripheral neuropathy since the August 15, 2012 effective date of the award of service connection; and, if so, the approximate date(s) of the change(s), and the severity of the disability as of each date. All examination findings/ testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development action deemed warranted t(o include arranging for the Veteran to under further examination, or otherwise obtaining medical comment, in connection with the TDIU claim), adjudicate the remaining claims on appeal(in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s)since the last adjudication) and legal authority (to include, for higher rating claim, consideration of whether any, or any further, staged rating of the disability is warranted). 9. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs