Citation Nr: 1805542 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-18 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for ischemic heart disease. 2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to November 4, 2014, and in excess of 50 percent thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to March 1968, including service in the Republic of Vietnam. He is the recipient of multiple awards and decorations, including the Purple Heart Medal, Combat Infantryman Badge, and Silver Star. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In an April 2012 rating decision, the RO granted service connection for ischemic heart disease/coronary artery disease and assigned an initial 10 percent disability rating, effective September 27, 2011, and denied entitlement to service connection for PTSD. The Veteran disagreed with the initial rating assigned for ischemic heart disease and the denial of service connection for PTSD. Subsequently, in an April 2014 rating decision, the RO granted service connection for PTSD and assigned an initial 30 percent rating, effective September 27, 2011. The Veteran disagreed with the initial rating assigned for PTSD. In correspondence received in May 2014, the Veteran raised the issue of entitlement to a TDIU. When a TDIU is raised in connection with an increased rating claim, the Board has jurisdiction over the issue of TDIU because it is part of the claim for increased compensation. Thus, the Board herein adds the TDIU claim to the Veteran's appeal consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). In a December 2014 decision, the RO increased the assigned rating for PTSD to 50 percent, effective November 4, 2014. The Court has held that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased rating for PTSD remains in appellate status. In correspondence received in October 2015 and September 2016, the Veteran indicated he wished to withdraw his request to testify at a hearing before a Veterans Law Judge. The Board deems his request for a hearing withdrawn. See 38 C.F.R § 20.704(e) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that an initial rating higher than 10 percent is warranted for his coronary artery disease and that at least a 70 percent initial rating is warranted for PTSD. As noted in the Introduction, in an April 2014 rating decision, the RO granted service connection for PTSD and the Veteran filed a notice of disagreement (NOD) the next month. In December 2014, the RO increased the assigned rating to 50 percent from November 4, 2014 the date of a VA fee-basis examination. In August 2014, the AOJ advised the Veteran of the opportunity to elect either the DRO appeal process or traditional appeal process in response to his NOD; however, the AOJ has not yet issued a statement of the case (SOC) addressing the initial ratings assigned for PTSD prior to and from November 4, 2014. The AOJ must issue an SOC with respect to that claim, the next step in the appellate process. See 38 C.F.R. § 19.29 (2017); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2017). Regarding the claim for an initial rating in excess of 10 percent for ischemic heart disease, the Board notes that the Veteran submitted private cardiology treatment records dated from February 2007 to August 2011 in support of his claim for service connection. In addition, the claims file contains treatment records from the Atlanta VA Medical Center (VAMC) dated from September to October 2011 and from the Blairsville VA Community Based Outpatient Clinic (CBOC) dated in November 2012 and from October 2013 to March 2014. The AOJ should attempt to obtain any ongoing private and VA treatment records pertinent to the Veteran's ischemic heart disease disability. Also, because the last VA fee-basis examination to evaluate the Veteran's ischemic heart disease was conducted in December 2011, the AOJ should arrange for an additional examination, as it appears that the Veteran's disability has progressed. Finally, in correspondence received on May 21, 2014, the Veteran raised the issue of entitlement to a TDIU, stating his PTSD prevented him from working. In January 2015 correspondence, he indicated he was retired and in a wheelchair due to an auto accident and believed it was unlikely he would be gainfully employed either due to his PTSD or the injuries from the auto accident. The Veteran has raised the issue of entitlement to a TDIU in the context of his claims for higher initial ratings for PTSD and ischemic heart disease. The claim of entitlement to a TDIU must be remanded to allow the AOJ to adjudicate the issue in the first instance. Remand is also necessary because the issue of a TDIU is dependent on the outcome of the increased rating claims being remanded and is, therefore, inextricably intertwined with those issues being remanded and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran and his representative an SOC addressing the issue of entitlement to an initial rating in excess of 30 percent for PTSD prior to November 4, 2014 and in excess of 50 percent thereafter. Provide the Veteran with appropriate notice of his appellate rights. If, and only if, the Veteran perfects a timely appeal, then the issue of entitlement to an initial higher rating for PTSD should be returned to the Board for further review. 2. With any necessary assistance from the Veteran, obtain and associate with the claims file the following records: a) Any ongoing private cardiology records from Piedmont Heart Institute dating since August 2011; b) All treatment records from the Atlanta VAMC dating since October 2011; and c) All treatment records from the Blairsville VA CBOC dating since September 2011. 3. Arrange for the Veteran to undergo VA examination for evaluation of his ischemic heart disease/coronary artery disease. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests and studies (to particularly include studies to obtain metabolic equivalents (METs) and ejection fraction measurements, if not contraindicated) should be accomplished. The examiner should include a discussion of the effects, if any, the Veteran's ischemic heart disease has on his usual occupation as a field maintenance manager with the Federal Aviation Administration (FAA) for 32 years. All examination findings/testing results, along with the complete, clearly-state rationale for the conclusions reached, must be provided. 4. After undertaking any other development deemed appropriate, the AOJ should readjudicate the claims of entitlement to an initial rating in excess of 10 percent for coronary artery disease and the claim for a TDIU. If any benefit sought is not granted in full, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an appropriate period of time for response. Thereafter, the case should be returned to the Board, if in order. The Veteran 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 (2012). _________________________________________________ K. Conner 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).