Citation Nr: 1805770 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-14 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent prior to June 26, 2015 and in excess of 60 percent thereafter for service-connected coronary artery disease status post myocardial infarction. 2. Entitlement to a total disability rating based upon individual unemployability (TIDU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Connor, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to August 1970 and from January 1972 to December 1973, including service in the Republic of Vietnam. He is in receipt of the Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which granted entitlement to service connection for coronary artery disease, assigned an initial 100 percent rating, and assigned a 30 percent rating from May 1, 2011. Thereafter, in an August 2015 rating decision, the RO increased the Veteran's disability rating to 60 percent, effective from June 26, 2015. The appeal continues. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (indicating that a claimant is generally presumed to be seeking the maximum benefit under the law). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part and parcel of an increased rating claim when such claim is raised by the record. The June 2015 VA examination report indicates that the Veteran's heart condition impacts his ability to work, as his cardiologist has "routinely" denied requests for clearance to work. Thus, in light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After careful consideration, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development. The Board regrets the delay associated with this remand; however, a remand is necessary for the following reasons to ensure that the Veteran is accorded full compliance with the statutory duty to notify and assist. The most recent VA treatment records in the Veteran's claims file are dated in October 2011. The supplemental statement of the case issued in August 2015 references VA treatment records through August 2015. During the June 2015 VA examination, the Veteran reported an appointment with his cardiologist the previous day, and the VA examiner referenced an EKG from February 2015 and myocardial perfusion in March 2015. As this indicates that there are outstanding treatment records that are relevant to the increased rating claim, VA must make an effort to obtain them. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Additionally, as noted above, the Board finds that a claim for TDIU is part and parcel of the Veteran's increased rating claim. The RO has not developed or adjudicated the matter of whether the Veteran's service-connected disability renders him unemployable. Therefore, the TDIU claim must be remanded to the RO for adjudication. See Rice, 22 Vet. App. 447. Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a notice letter pertaining to the TDIU claim. Specifically, ensure that the Veteran is furnished proper notice including: (a) the information and evidence not of record that is necessary to substantiate the claim for TDIU, (b) the information and evidence that VA will seek to provide, and (c) the information and evidence that the Veteran is expected to provide. The letter should also advise the Veteran of the evidence necessary to establish an effective date for this claim, as outlined in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran should also be sent a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO. 2. After obtaining any necessary releases, the RO should attempt to obtain copies of updated VA and private medical records pertinent to the Veteran's coronary artery disease. All records obtained must be associated with the claims folder. If the RO cannot obtain records identified as relevant by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO should adjudicate the Veteran's claims, including entitlement to TDIU. If maximum benefit sought with respect to each claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The appellant 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). _________________________________________________ CAROLINE B. FLEMING 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).