Citation Nr: 20009802 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-54 411 DATE: February 6, 2020 REMANDED Entitlement to an initial rating in excess of 30 percent for coronary artery disease (CAD) status post coronary artery bypass graft (CABG) prior to August 27, 2009, and in excess of 60 percent prior to November 19, 2012, for accrued benefits purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1952 to June 1972. Unfortunately, he died in April 2014. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision. By way of background, the appellant requested that VA initiate a review of the Veteran’s claims file, in accordance with Nehmer v. U.S. Dep’t of Veterans Affairs, 284 F.3d 1158 (9th Cir. 2002), in June 2014. The Regional Office (RO) granted service connection for CAD status post CABG in a September 2015 rating decision and assigned a 10 percent disability rating effective December 4, 2008, which is the original date the Veteran filed a claim for service connection for a heart condition. The appellant requested reconsideration of the assigned rating in February 2016 and submitted additional medical evidence. Thereafter, in a June 2016 rating decision, the RO granted a staged rating for the Veteran’s CAD, assigning a 10 percent rating from December 4, 2008 and a 60 percent rating from April 21, 2012 until the date of the Veteran’s death in April 2014. The appellant initiated an appeal for the assigned initial disability ratings. During the development period, in a September 2017 rating decision, the RO again granted increased staged ratings for the Veteran’s CAD, assigning a 30 percent rating from December 4, 2008, a 60 percent rating from August 27, 2009, and a 100 percent rating from November 19, 2012 until the Veteran’s death. As a claimant is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded, the appellant’s claim for higher initial ratings for the Veteran’s CAD remains on appeal for the period prior to November 19, 2012. AB v. Brown, 6 Vet. App. 35 (1993). As the 100 percent rating assigned from November 19, 2012 is the maximum available benefit, that period is not on appeal before the Board In her October 2017 substantive appeal, the appellant requested the opportunity to testify before a member of the Board at a hearing. A Central Office hearing was scheduled for November 2019; however, the appellant failed to appear. Therefore, the appellant’s hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). Although the Board regrets additional delay, the appeal must be remanded for further development to ensure that there is a complete record upon which to decide the claim and to afford the appellant every possible consideration. Entitlement to an initial rating in excess of 30 percent for CAD status post CABG prior to August 27, 2009, and in excess of 60 percent prior to November 19, 2012, for accrued benefits purposes, is remanded. The appellant seeks entitlement to initial increased ratings for the Veteran’s CAD status post CABG, which is rated 30 percent disabling prior to August 27, 2009 and 60 percent disabling prior to November 19, 2012. The appellant contends that the Veteran’s CAD and its associated symptoms were more severe than contemplated by the currently-assigned disability ratings. Specifically, the appellant has argued that the Veteran had chronic congestive heart failure prior to November 19, 2012, which warrants a 100 percent disability rating pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. For reference, under Diagnostic Code 7005, a 30 percent rating is assigned when a workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is evidence of cardiac hypertrophy or dilatation. A 60 percent rating is assigned for more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure; or a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. The Board has reviewed the private treatment records submitted by the appellant. On August 27, 2009, the Veteran was admitted to the emergency room at Gadsden Regional Medical Center for tachycardia. According to the treating doctor’s admission report, the Veteran’s “past history is positive for congestive heart failure.” An electrocardiogram showed the Veteran to have atrial fibrillation with a rapid ventricular rate. The Veteran was treated and discharged one week later. At a September 11, 2009 follow-up, the Veteran’s physician provided the following assessment: “Cardiomyopathy with ejection fraction of 40 to 45 with a chronic systolic dysfunction. Congestive heart failure.” As noted above, a 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, and a 100 percent rating is warranted for chronic congestive heart failure, pursuant to 38 C.F.R. § 4.104. While it is clear from the medical evidence of record that the Veteran had some form of congestive heart failure prior to August 27, 2009, the Board is unable to determine whether it was considered acute (warranting a 60 percent rating) or chronic (warranting a 100 percent rating). Because the evidence raises medical issues that the Board is not competent to address, remand is required to obtain a VA medical opinion that properly assesses the severity of the Veteran’s CAD for the entire period prior to November 19, 2012. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Additionally, on remand, the appellant should be asked to identify any outstanding medical records that may be relevant to the claim on appeal. In this regard, it does not appear that the complete medical records from the Veteran’s August 2009 hospitalization at Gadsden Regional Medical Center have been obtained, including contemporaneous electrocardiogram and echocardiogram reports. As such, the RO should make appropriate efforts to obtain any outstanding treatment records identified by the appellant. Accordingly, the matter is REMANDED for the following actions: 1. Contact the appellant and request that she submit any additional medical records in her possession or, alternatively, to identify and authorize VA to obtain any outstanding VA or non-VA medical records on her behalf. The RO should specifically request assistance to obtain all outstanding August 2009 hospital records from Gadsden Regional Medical Center, including contemporaneous electrocardiogram and echocardiogram reports. 2. Then, forward the Veteran’s claims file to a VA medical professional (M.D.) of appropriate expertise (i.e. cardiologist) to provide a retrospective medical opinion evaluating the severity of the Veteran’s coronary artery disease during the period from December 2008 to November 2012. The examiner must review the Veteran’s entire claims file, to include a copy of this REMAND, and that review must be noted in the report. After comprehensive review of the Veteran’s medical records from December 4, 2008 to November 18, 2012, the examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) At any time prior to November 19, 2012, did the Veteran’s coronary artery disease result in (i) more than one episode of acute congestive heart failure; and/or (ii) chronic congestive heart failure? In providing the foregoing, the examiner is asked to specifically address the records from Gadsden Regional Medical Center in which it is noted that the Veteran’s “past history is positive for congestive heart failure” (August 27, 2009) and he is assessed to have “cardiomyopathy with ejection fraction of 40 to 45 with a chronic systolic dysfunction. Congestive heart failure” (September 11, 2009). To the extent possible, the examiner must attempt to estimate the approximate dates that the Veteran’s acute and/or chronic congestive heart failure first manifested. (b) At any time prior to November 19, 2012, did the Veteran’s symptoms of coronary artery disease (i.e. dyspnea, fatigue, angina, dizziness, or syncope) onset after an activity level equivalent to (i) a workload greater than 3 but not greater than 5 METs; and/or (ii) a workload less than 3 METs? To the extent possible, the examiner must attempt to estimate the approximate timeframe that the Veteran’s coronary artery disease resulted in the respective level of METs. (Continued on next page) The examiner must provide a complete rationale for any opinions offered, citing to evidence in the record when necessary to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.