Citation Nr: 1806694 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-09 023A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for coronary artery disease, rated as 10 percent disabling prior to March 18, 2011 and as 30 percent disabling beginning on that date. 2. Entitlement to an effective date earlier than July 26, 2011 for the grant of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to an effective date earlier than July 26, 2011 for the grant of Dependents' Educational Assistance (DEA) pursuant to Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC, and a December 2011 rating decision issued by the VA Regional Office (RO) in Philadelphia, Pennsylvania. In the August 2011 rating decision, the AMC increased the disability rating for PTSD to 70 percent, and granted entitlement to a TDIU and entitlement to DEA benefits, all effective August 2, 2011. In the December 2011 rating decision, the RO, in relevant part, granted entitlement to service connection for CAD and assigned a 10 percent disability rating, effective August 31, 2010. In a June 2013 rating decision, the RO granted an earlier effective date of April 14, 2006, for the grant of entitlement to service connection for CAD, and assigned a higher disability rating of 30 percent, effective March 18, 2011, with the 10 percent disability rating in effect prior to that date. When the case was before the Board in July 2015 the issues currently before the Board were remanded for additional development. Also in July 2015, the Board granted an earlier effective date of July 26, 2011, for the award of a 70 percent rating for PTSD (noted to be the earliest effective date the Board could legally grant); granted an earlier effective date of July 26, 2011, for the grant of TDIU; and denied an effective date earlier than April 14, 2006, for the grant of service connection for CAD. The Veteran appealed the denial of entitlement to an earlier effective date for CAD to the United States Court of Appeals for Veterans Claims (Court). In June 2016, the Court issued an Order granting a Joint Motion for Partial Remand which vacated the part of the July 2015 Board decision that denied an earlier effective date for CAD and remanded the issue back to the Board for action in compliance with the Joint Motion for Partial Remand. Thereafter, in a July 2017 decision, the Board granted an earlier effective date of April 11, 2003, for the grant of service connection for CAD, which is considered a full grant of the issue appealed. As such, it is not currently before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is required before the claims on appeal are decided. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). The July 2015 remand instructed the AOJ to schedule the Veteran for a VA cardiology examination to determine the current severity of his CAD. It was noted that the examiner should indicate that the claims file and remand were reviewed. The examiner was specifically instructed to describe the frequency and severity of any congestive heart failure, determine the current ejection fraction and MET levels, and note any resulting symptomatology. The requested examination was held in November 2016. The report of that examination does not reflect any information regarding congestive heart failure. It also does not reflect that the examiner reviewed the claims file, or the July 2015 remand. In a January 2017 written statement, the Veteran's representative requested that a new VA examination be conducted because the November 2016 VA examination is inadequate. Specifically, it was argued that the examiner did not review the claims file, did not adequately address the Veteran's current diagnosis and symptoms (merely confirmed the historical diagnosis), did not provide the frequency and severity of the congestive heart failure, and referenced a March 2011 echogram instead of providing current findings. Under the circumstances, a remand for a new VA examination is required. The July 2015 remand also instructed the AOJ to refer the issue of entitlement to an effective date earlier than July 26, 2011, for the grant of TDIU to the Director of Compensation Service for consideration pursuant to 38 C.F.R. § 4.16(b). In a February 2017 memorandum, the Director of Compensation Service indicated that it was premature to provide such an evaluation because the issue of entitlement to an earlier effective date for the grant of service connection CAD had yet to be decided after being remanded by the Court. It was noted that the issue of entitlement to an earlier effective date for entitlement to a TDIU could be returned to the Director of Compensation once the earlier effective date involving CAD had been resolved. Importantly, and as previously noted, in a January 2017 Board decision, an earlier effective date of April 3, 2003, was granted for entitlement to CAD, and was implemented in a March 2017 rating decision. However, the earlier effective date issue for TDIU was not returned to the Director of Compensation for consideration. In a July 2017 statement the Veteran requested that the issue be returned to the Director of Compensation. As such, a remand is required. The Board notes that although the February 2017 Memorandum from the Director of Compensation Service also indicated that the issue of entitlement to an earlier effective date for a TDIU pursuant to 38 C.F.R. § 4.16(b) could not be addressed until the Court-remanded issue of entitlement to an earlier effective date for the grant of a 70 percent rating for PTSD was decided, the Board points out that the issue of entitlement to an earlier effective date for the grant of a 70 percent rating for PTSD was granted by the Board in July 2015 (it was noted that it was a full grant of the benefits sought on appeal). It was not appealed by the Veteran or remanded by the Court, and it is not currently pending. The issue of entitlement to an earlier effective date for the grant of DEA benefits is inextricably intertwined with the claim of entitlement to an earlier effective date for the grant of a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, adjudication of that claim must be deferred pending adjudication of the earlier effective date claim for entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA cardiology examination. The examiner should indicate that the claims file, including this REMAND, was reviewed. All necessary studies and tests should be conducted. The examiner should specifically describe the frequency and severity of any congestive heart failure, determine the Veteran's current ejection fraction and current MET levels, and note any resulting symptomatology. 2. Refer the issue of entitlement to a TDIU earlier than July 26, 2011, to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16 (b). 3. Then, readjudicate the claims on appeal. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order. The appellant 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). 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). _________________________________________________ Kristin Haddock 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).