Citation Nr: 1808111 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-27 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for ischemic heart disease. REPRESENTATION Veteran represented by: Matthew Wilcut, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to September 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for ischemic heart disease on a presumptive basis as due to in-service exposure to herbicides. This appeal arises based on disagreement with the propriety of the initial 10 percent rating assigned for ischemic heart disease by this rating decision. In April 2017, the Veteran was afforded a videoconference hearing before the undersigned. A transcript of this hearing is of record. At the April 2017 hearing, the Veteran's attorney presented argument in favor of a separate award of service-connection for hypertension. In particular, the Veteran's attorney asserted that it was the Veteran's intent to have hypertension considered to be both service-connected and rated as a separate stand-alone disability since the time he originally filed his service-connection claim for coronary artery disease. The Board has reviewed the record, and observes that shortly after filing his heart disease claim in June 2012, he submitted statements to VA noting treatment for hypertension since 1989. See a Statement in Support of Claim dated November 19, 2012. He also noted his treatment for hypertension on his VA Form 9, received in July 2014. Resolving all doubt in the Veteran's favor, the Board accepts that a service-connection claim for hypertension was raised by the Veteran, and has remained unadjudicated by the Agency of Original Jurisdiction (AOJ). As such, the issue is referred to the AOJ for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. (CONTINUED ON NEXT PAGE) REMAND The Veteran's service connected ischemic heart disease is rated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005 (2017). Under DC 7005, a rating in excess of 10 percent would be warranted if a workload greater than 5 METs (metabolic equivalents) but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Higher ratings are assignable under DC 7005 when there are pertinent symptoms at workloads of lesser METs or with left ventricular dysfunction or congestive heart failure. In sworn testimony presented at the hearing before the undersigned, the Veteran found fault with a June 2013 VA examination conducted to assess the severity of his ischemic heart disease. In particular, the Veteran disagreed with the determination at the June 2013 VA examination that exercise METs testing was not required because there were no pertinent cardiac symptoms with any level of physical activity, and the statement by the examiner that the Veteran was able to play baseball with teenage children without restriction. The Veteran's attorney also argued at the hearing that the examiner's failure to conduct cardiac testing such as an electrocardiogram, echocardiogram, and/or an exercise tolerance test at the June 2013 VA examination, and his reliance instead on the results from such testing conducted several years prior to the examination, rendered the June 2013 VA examination inadequate. Given the pertinent rating criteria set forth above, the Veteran's testimony and clinical records contained in reports from treatment at a VA cardiac clinic after the June 2013 VA examination referencing the fact that there are pertinent cardiac symptoms and limitations of functioning with exertion, and the testimony with respect to the need for further cardiac testing, the undersigned finds that the Veteran must be afforded a VA examination to assess the severity of his service connected ischemic heart disease to fulfill the duty to assist. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.326 (2017); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the case is REMANDED for the following action: 1. Arrange for an appropriate VA examination to determine the current nature and severity of the Veteran's service-connected ischemic heart disease. All indicated tests and studies should be conducted, to include, as feasible, an electrocardiogram, echocardiogram, and/or chest X-ray. The electronic record, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner should take a history from the Veteran as to the progression of his disability, and upon review of the Veteran's record and examination, the examiner should make specific findings as to: (a) Whether the Veteran has chronic congestive heart failure, or whether a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or whether he has left ventricular dysfunction with an ejection fraction of less than 30 percent or; (b) Whether the Veteran has had more than one episode of chronic congestive heart failure in the past year or whether a workload of 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope or whether he has left ventricular dysfunction with an ejection fraction of 30 to 50 percent or; (c) Whether a workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. To the extent possible, the examiner should also provide a retrospective opinion as to the severity of the Veteran's disability from June 2011 to the present day, keeping the above criteria and the Veteran's descriptions of his physical capabilities since that time in mind. If this opinion cannot be provided, please explain why this is the case. 2. After completion of the above and any other development deemed warranted, readjudicate the claim on appeal. To the extent this clam is not granted in fully, the AOJ should issue a Supplemental Statement of the Case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ V. Chiappetta 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).