Citation Nr: 18144264 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 14-10 190 DATE: October 25, 2018 REMANDED Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army from January 16, 1951 to May 31, 1971. The records reflect that the Veteran is a Veteran of the Korean Conflict and of the Vietnam War. The records also reflect that the Veteran received the Bronze Star Medal for his service in Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claim for entitlement to TDIU. In October 2011, the RO granted service connection for the Veteran’s cardiac disability, and assigned an initial 30 percent rating, effective August 31, 2010; as well as a noncompensable rating for associated surgical scarring. The Veteran submitted a notice of disagreement in November 2011 as to the initial rating assigned for his cardiac disability. He asserted that he was entitled to a higher rating, that he became totally disabled from his prior employment in 1980, and that he was still unable to work due to his cardiac disability. In August 2013, the RO denied entitlement to a TDIU because the Veteran did not submit a formal claim (VA Form 21-8940) as requested. The Veteran then submitted a VA Form 21-8940 in August 2013. The RO denied this claim in the February 2014 statement of the case (SOC), as part of the claim for a higher rating for the service-connected cardiac disability. Moreover, the TDIU issue is under the Board’s jurisdiction as part of the appeal for a higher rating for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran requested a Board hearing at the RO in his March 2014 substantive appeal (VA Form 9); however, he withdrew this request in multiple written statements, to include in February 2015. In February 2016, the Board denied a higher initial rating for coronary artery disease and remanded the issue of entitlement to TDIU. The Veteran’s appeal was thereafter returned to the Board, and in an August 2016 decision, the Board denied the Veteran’s TDIU claim. The Veteran appealed the Board’s August 2016 decision denying entitlement to TDIU to the United States Court of Appeals for Veterans Claims (the Court). In June 2017, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Remand (JMR). An Order of the Court dated June 8, 2017 granted the motion, vacated the Board’s August 2016 decision, and remanded the case to the Board. The Veteran’s claims folder was returned to the Board for further appellate proceedings. In August 2017, the Board remanded the issue of entitlement to TDIU and adjudication of entitlement to service connection for left ventricular systolic dysfunction, hypertension, mini-strokes, stent placement, and peripheral artery disease. In a September 2017 rating decision, the RO increased the rating for coronary artery disease status post coronary artery bypass graft with right bundle branch block to 60 percent effective July 19, 2017. In the same rating decision, the RO denied service connection for hypertension; multiple transient ischemic attacks and mini strokes; and peripheral prescription disease with stent placement. In March 2018, the RO issued a supplemental statement of the case (SOC), denying entitlement to TDIU. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2017).] 1. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. The parties to the June 2017 JMR noted that the Board erred by providing an inadequate statement of reasons and bases in finding that the Veteran is not entitled to TDIU. Specifically, the Board erred in that “[t]here is no mention in [the treatment records from Dr. J.G.] of the Veteran’s inability to maintain employment.” The parties to the JMR noted that in October 2011, the Veteran submitted a letter from his treating cardiologist, Dr. J.G., which stated that he advised the Veteran “he should not continue employment due to the severity of his disease process and subsequent symptoms.” While the Board discussed the private cardiology records from Dr. J.G., the Board did not address his October 2011 letter. Also, the Board did not provide an adequate statement of reasons or bases to support the finding that the Veteran’s service-connected disabilities do not prevent him from following a substantially gainful occupation. In this regard, the Board only addressed the Veteran’s service-connected coronary artery disease and scar and did not address the Veteran’s other service-connected disabilities, namely his amputation of the right proximal phalanx fourth finger, tinnitus, appendectomy, and bilateral hearing loss disability in the aggregate. Additionally, the JMR noted that the Board did not adequately address the Veteran’s educational and vocational background in denying his TDIU claim. While finding that the medical evidence did not show that the Veteran was precluded from substantially gainful employment consistent with his education and occupational history, the Board did not address the Veteran’s educational and occupational history beyond noting the Veteran’s report that he last worked full-time in 1980 as a postal carrier and he completed high school. Further, the Board did not discuss the effects of the Veteran’s service connected disabilities on his ability to obtain or maintain substantially gainful employment given his educational and occupational history. Therefore, remand was required for the Board to adequately address the effect of the Veteran’s educational and occupational history on his ability to obtain or maintain substantially gainful employment. Finally, the JMR noted that the Board was required to obtain the complete VA treatment records of the Veteran. In a letter dated July 2017, the Board wrote to the Veteran and notified him of the return of the case from the Court. The Veteran was given 90 days to submit additional argument and/or evidence in support of his claim. The Veteran responded that same month and requested that the case be remanded to the AOJ for review of additional evidence submitted in his appeal. The Board observed that in July 2017, updated VA treatment records were associated with the claims folder. Under 38 C.F.R. § 20.1304(c), additional pertinent evidence must be referred to the AOJ if such evidence is not accompanied by a waiver of AOJ jurisdiction. As the Veteran specifically denied waiver of additional evidence in connection with his TDIU claim, the Board remanded the claim to the AOJ. In addition to the foregoing, the Board noted that the medical evidence of record was absent an opinion as to the functional impairment of the Veteran’s service connected disabilities in aggregate on his employability. Further, the medical evidence of record was absent an opinion as to the effect of the Veteran’s educational and occupational history on his ability to obtain or maintain substantially gainful employment in light of his service-connected disabilities in the aggregate. In light of these ambiguities as well as the June 2017 JMR, the Board determined that a VA examination would be probative in ascertaining the functional impairment of the Veteran’s service-connected disabilities in the aggregate and the effect of these disabilities on his employability with consideration of his educational and occupational history. See 38 C.F.R. § 3.159(c)(4) (2016) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Further, in providing the requested opinion, the examiner was to address the October 2011 private treatment letter from Dr. J.G. which indicated the Veteran should not continue employment due to the severity of his coronary artery disease process and subsequent symptoms. The Board finally noted that in the Veteran’s July 2017 Informal Hearing Presentation (IHP), the Veteran’s representative indicated that certain VA treatment records were missing from the claims folder, in particular noting audiology treatment records dated after December 2011 from the Sierra Vista Community Based Outpatient Clinic and fee basis cardiology consult records from the Southern Arizona VA Health Care System. The Board observed that in July 2017, VA audiology records dated after December 2011 from the Sierra Vista Community Based Outpatient Clinic were associated with the claims folder. However, while a March 2011 fee basis cardiac consult result was of record, the report documents scanned images were not of record. Therefore, on remand, these records were to be obtained and associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, “in contemplation of law, before the Secretary and the Board and should be included in the record”). In a September 2017 rating decision, an increased rating of 60% from 30% effective July 19, 2017 was granted for coronary artery disease status post coronary artery bypass graft with right bundle branch block. Service connections for hypertension, multiple transient ischemic attacks and mini strokes, and peripheral prescription disease with stent placement were denied. In an August 24, 2017 VA examination, the examiner used the Disability Benefits Questionnaire for Heart Conditions (DBQ) to conduct the Compensation and Pension Exam. On the DBQ, the examiner reported that the Veteran “denies chest pain but complains of daily palpitations. He notes shortness of breath and fatigue with mowing the yard or using the weed eater; he notes that he has to stop to get his breath and then continue. He reports aching pain in both legs with walking and the need to stop and rest before walking more. He suffers from arthritis in his knee and back and notes that these limit bending.” The examiner was asked to provide the etiology, if known of each of the Veteran’s heart conditions, including the relationship/causality to other heart conditions, particularly the relationship/causality to the Veteran’s IHD conditions. In response, the examiner stated that “the coronary artery disease s/p CABG’s etiology was artherosclerosis; mitral regurgitation’s etiology was likely age related and not secondary to ischemic heart disease; and the right bundle branch block’s etiology was coronary artery disease.” The examiner reported evidence of cardiac hypertrophy and cardiac dilatation. The examiner reported that an 8/11/17 EKG showed “sinus rhythm with occasional PVC, right bundle branch block.” The examiner reported that an 8/15/17 echocardiogram showed a left ventricular ejection fraction (LVEF) of 45-50%, with abnormal wall motion described as “hypokinesis of the inferolateral wall and akinesis of the basal inferior wall” and abnormal wall thickness described as “moderate left ventricular hypertrophy.” The examiner reported that an interview-based METs test conducted on 8/11/17. During the METs test, the examiner reported the Veteran reported symptoms ““dyspnea and fatigue” at the > 3-5 METs level, which has been found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), brisk walking (4 mph).” The examiner reported the estimated METs level due solely to the cardiac condition(s) was “> 5-7 METs level, which has been found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), heavy yard work (digging).” The examiner provided the rationale that “the Veteran’s exercise capacity is affected by non-cardiac factors, including obesity, chronic back/knee pain, cerebrovascular disease, and peripheral vascular disease. Based on these factors, it is likely that non-cardiac co-morbidities add to whatever limitation of activity/METs is caused solely by ischemic heart disease. Given the fact that METs are a measurement of global cardiac cardiopulmonary capacity, and given the absence of any theoretical basis for separating the effects of cardiac and his other conditions in limiting this capacity, it is not possible to provider an accurate estimated of METS based on ischemic heart disease alone. Given echocardiogram findings with preserved ejection fraction, it would be expected that in the absence of co-morbidities METS would be higher than the estimated based on his current activity limitations. Therefore, a reasonable estimate, with the caveats as specified herein, would be greater than 5 but no greater than 7.” The examiner reported functional impact on the Veteran’s ability to work caused by the Veteran’s heart condition. The examiner reported that “activities that involve strenuous exertion are limited by the Veteran’s heart condition.” A remand by the Court or the Board confers on a veteran or other claimant, as a matter of law, the right to substantial compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Forcier v. Nicholson 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). Here, several The examiner did not provide information to support that the Veteran was interviewed as to his employment and education history other than work for the Postal Service and earning a high school diploma. The examiner did not provide an opinion as to the functional impairment of the Veteran’s service-connected disabilities, which include coronary artery disease, status post coronary artery bypass graft; amputation right proximal phalanx, fourth finger; tinnitus; appendectomy; residuals of scars of the midline sternum and left medical leg associated with coronary artery disease status post coronary artery bypass graft; and a bilateral hearing loss disability including their aggregate level of impairment to perform activities required in various occupational situations such as walking, standing, climbing stairs, driving a vehicle, using public transportation, and sedentary tasks such as use of a telephone and keyboard, managing a work schedule and financial transactions. The examiner did not address the October 2011 private treatment letter by Dr. J.G. indicating that the Veteran should not continue employment due to his coronary artery disease. The examiner copied a July 2017 CPRS letter from the Veteran’s PCP indicating that the Veteran has been disabled for any gainful work at any level, but did not address the letter or the statement. No underlying reasons for any opinions expressed were provided as required. Since there are outstanding (1) assessments, (2) opinions with required reasons for those opinions, (3) interviews, and (4) statements addressing the October 2011 and July 17 letters, the Board is unable to make a fully-informed decision. The matter is REMANDED for the following action: 1. Based on the examination and review of the record, the examiner must provide an opinion as the functional impairment of the Veteran’s service connected disabilities, which include coronary artery disease, status post coronary artery bypass graft; amputation right proximal phalanx, fourth finger; tinnitus; appendectomy; residuals of scars of the midline sternum and left medical leg associated with coronary artery disease status post coronary artery bypass graft; and a bilateral hearing loss disability. The examiner is asked to interview the Veteran as to any employment skills and education history in addition to work for the Postal Service and a high school education. The examiner is asked to provide an assessment of the functional impairment associated with the Veteran’s service-connected disabilities in the aggregate as related to the Veteran’s ability to perform activities required in various occupational situations such as walking, standing, climbing stairs, driving a vehicle, using public transportation, and sedentary tasks such as use of a telephone and keyboard, managing a work schedule and financial transactions. The examiner is further requested to address the October 2011 private treatment letter by Dr. J.G. indicating that the Veteran should not continue employment due to his coronary artery disease and the July 2017 CPRS letter from the Veteran’s PCP indicating that the Veteran has been disabled for any gainful work at any level. The underlying reasons for any opinions expressed are required. (Continued on the next page)   2. Review the claims folder to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel