Citation Nr: 1807001 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 03-12 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for abdominal aortic aneurysm, to include as secondary to ischemic heart disease. 2. Entitlement to service connection for carotid artery disease, to include as secondary to ischemic heart disease. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD)/emphysema, to include as secondary to ischemic heart disease. 4. Entitlement to a total disability based on individual unemployability (TDIU) for the period prior to October 15, 2011. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the August 2014 rating decision, the RO granted the Veteran's claim for a TDIU, effective October 15, 2011. In the August 2016 Appellant's Informal Brief, the Veteran, through his attorney, requested a TDIU for the period prior to October 15, 2011. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded these matters for further development in December 2016, which has not been substantially complied with, thereby necessitating another remand. See Stegall v. West, 11 Vet. App. 268 (1998). In September 2017 the Board granted a 90-day extension in response to a formal request for such. That period has now expired. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While delay is regrettable, further development is required to ensure compliance with the Board's December 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall, 11 Vet. App. at 268. Service Connection The Veteran seeks service connection for an aortic aneurysm, carotid artery disease, and COPD. He contends either it was incurred in active service, or as a result of his service-connected ischemic heart disease. See July 2011 VA Form 21-526b, Veteran's Supplemental Claim for Compensation and January 2012 Notice of Disagreement. In a December 2016 remand, the Board, in pertinent part, instructed the RO to obtain a medical opinion on whether the carotid artery disease, abdominal aortic aneurysm, and COPD were either caused or aggravated as a result of his service-connected ischemic heart disease. The medical opinion received in February 2017 does not discuss whether the aortic aneurysm or carotid artery disease were caused or aggravated by the service-connected ischemic heart disease. The examiner did express an opinion that the Veteran's medical records do not document an aggravation of COPD by his service-connected conditions, including ischemic heart disease. This opinion is not fully responsive to the question posed and no rationale was provided. In addition, the examiner was specifically asked to take into consideration the service clinical records dated in January 1964 and November 1965. The opinion does not reflect any consideration of those records. 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, 311 (2007). Therefore, another remand is necessary. TDIU As noted, the Veteran meets the schedular requirements for a TDIU for the period prior to October 15, 2011. However, the question remains whether he engaged in substantially gainful employment consistent with his education and occupational experience for that period. On his VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked as a security officer on a part-time basis (15 hours a week) at the Clayton County Board of Commissions from July 2003 to October 2011. Information received from the Clayton County Board of Commissions shows the Veteran last worked on October 14, 2011, and that his last paycheck was in the amount of $320.99 on October 20, 2011. The County Board further noted that in the 12 months preceding the last date of employment, the Veteran made $10,186.03. In the Board's December 2016 remand, the Veteran was asked to submit evidence that detailed his wage earnings, to include copies of SSA statement of wage earnings, from 2000 to 2011. In November 2017, the Veteran's attorney submitted SSA wage earnings (SSA Earnings Record Information). The SSA Earnings Record Information reflects that from January 1, 1945 through December 31, 2016; the Veteran had earnings credited to him from 1963 to 2008. There is no information provided for the years between 2009 and 2011. On remand the Veteran is asked to provide any additional information he has documenting marginal employment for the period from January 2009 until October 2010. The Board observes that the RO requested employment information from Dixie Express in June 2017; a response was not received. On remand, the RO should make at least one follow-up request for this information. 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following action: 1. Return the claims folder, and a copy of this Remand, to the February 2017 examiner. If that examiner is unavailable, the file should be sent to another examiner who should review the file. The need for an in-person examination is left to the discretion of the examiner. Following a review of the record, the examiner must express an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's carotid artery disease, abdominal aortic aneurysm, or COPD are proximately caused by or, aggravated (chronically worsened beyond normal progression) by the service-connected ischemic heart disease. The examiner should note that in answering this question, two opinions are required: one for proximate causation and a second for aggravation. The term "aggravation" means a chronic worsening of a disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the carotid artery disease, abdominal aortic aneurysm, or COPD prior to aggravation by the ischemic heart disease. A fully articulated rationale must be provided for all opinions expressed. If the examiner is unable to provide the opinions and supporting rationale, then he or she must indicate why (e.g. additional evidence is needed, limits of medical knowledge, etc.). 2. Ask the Veteran to submit evidence (e.g., W2 Forms, tax returns, etc.) documenting marginal employment (i.e. earned annual income not exceeding the poverty threshold for a household of two under 65 years), if any, from January 2009 to October 2010. Provide him with an appropriate form(s) for eliciting income information (e.g. Eligibility Verification Report, etc.) to complete. All actions to obtain the aforementioned requested information should be documented fully in the claims folder. 3. After securing a release, if necessary, the RO should submit a follow- up request to Dixie Express for the Veteran's employment records. 4. Then readjudicate the issues appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case to the Veteran and his attorney and afford them an opportunity to respond. 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).