Citation Nr: 21069289 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-27 852 DATE: November 18, 2021 REMANDED Entitlement to an increased initial evaluation in excess of 60 percent from October 28, 2013 for coronary artery disease status post bypass graft, claimed as ischemic heart disease, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As part of his May 2017 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In correspondence dated August 15, 2021, the Veteran was properly notified of the date, time and location of the scheduled virtual hearing set for September 24, 2021 but failed to report for the hearing. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the record indicates while the Veteran has not formally claimed a TDIU, but also that he has significant disability that may prevent him from gaining or maintaining suitable employment. As such, the Board infers a TDIU claim for the Veteran. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. 1. Entitlement to an increased initial evaluation in excess of 60 percent from October 28, 2013 for coronary artery disease status post bypass graft is remanded. The Veteran is currently rated under Diagnostic Code 7017 for his coronary artery disease status post bypass graft, currently with a 60 percent rating from the original date of service connection of October 28, 2013. 38 C.F.R. § 4.104, Diagnostic Code 7017 (2021). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that the Veteran has stated that he receives most of his cardiac care from private medical care, but recent records for any cardiac care are absent from the claims file. In addition, the last VA examination was over seven years ago in April 2014; thus, a new VA examination is required to ascertain the current degree of the Veteran's cardiac-related disability. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. As mentioned earlier in this decision and remand, the Board finds that the issue of TDIU is inferred by the record. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran already meets schedular criteria based on his existing service-connected disabilities, and medical records in the claims file indicate the Veteran's cardiac disabilities interfere with his ability to seek and maintain gainful employment. As such, the TDIU claim is inextricably intertwined with the remanded acquired coronary artery disease increased rating claim and therefore must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. After completion of the above, schedule the Veteran for a VA examination by an examiner with cardiology expertise to determine the nature and severity of his service-connected coronary artery disease status post bypass graft. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should note that the claims file has been reviewed. The examiner should describe the nature, extent, and severity of the Veteran's service-connected coronary artery disease, to include any related valvular, arteriosclerotic, or other cardiac-related disease and symptoms. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. 3. With reference to the referred TDIU claim, contact the Veteran and assist him with all appropriate development pertinent to this inferred claim, to include a VA Form 21-8940, and any other documentation that may assist the adjudicator in the determination of a TDIU. 4. Thereafter, readjudicate the issues on appeal, to include the referred TDIU claim. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. 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). (CONTINUED ON NEXT PAGE) 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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.