Citation Nr: 21010764 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-40 052 DATE: February 25, 2021 REMANDED Entitlement to a rating in excess of 30 percent disabling for ischemic heart disease is remanded. Entitlement to service connection for a lower back disability is remanded REASONS FOR REMAND The Veteran served on active duty from February 1968 to September 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified, sitting in Louisville, Kentucky, before the undersigned. A transcript of the hearing has been associated with the virtual file and reviewed. In April 2019, the Board remanded the above matters for further development. As the requested development has not been completed as to the lower back claim, the matter must be remanded again to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). A June 2020 Board decision also remanded the issues of service connection for bilateral hearing loss and tinnitus for further development. A November 2020 rating decision granted service connection for tinnitus and a November 2020 supplemental statement of the case denied service connection for hearing loss. As the hearing loss issue is not currently ready for appellate consideration and it will be the subject of a separate, later Board decision. A September 2020 rating decision granted the Veteran an increased rating, from 10 percent to 30 percent, for ischemic heart disease, which the RO found was a full grant of the benefit sought since the Veteran requested a 30 percent evaluation in his notice of disagreement (NOD). However, the Board finds that the record lacks a clear statement of intent to withdraw the ischemic heart disease claim on the basis of a grant of 30 percent disability rating. The Board notes that in all claims a veteran is presumed to be seeking the maximum possible evaluation and a claim is not resolved until the maximum evaluation is granted or explicitly denied. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Without such a clear statement of intent, the Board finds that the increased rating of 30 percent did not constitute a full grant of benefits sought; therefore, the appeal continues. 1. Entitlement to a rating in excess of 30 percent disabling for ischemic heart disease is remanded. An April 2019 Board decision remanded the claim of entitlement to a rating in excess of 30 percent for ischemic heart disease. The Board directed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination to determine the current severity of his service-connected ischemic heart disease. 04/19/2019, BVA Decision. A September 2020 VA examination was conducted with regard to the severity of the Veteran’s ischemic heart disease. 09/18/2020, C&P Exam. And, a September 2020 rating decision assigned a 30 percent evaluation for ischemic heart disease, effective January 23, 2014. 09/21/2020, Rating Decision. However, the RO did not issue a Supplementary Statement of Case (SSOC) with regards to the Veteran’s claim for an increased rating for ischemic heart disease. The grant of a 30 percent rating effective January 23, 2014, in the September 2020 rating decision did not resolve the Veteran’s claim for an increased rating. At the November 2018 Board hearing, the Veteran testified to symptoms that could possibly warrant a rating in excess of 30 percent. As such, the 30 percent rating assigned on remand is not a grant in full of the benefits sought by the Veteran because he did not specifically state that he would be satisfied with 30 percent and later documents seem to support this. Therefore, a remand is necessary for the issuance of an SSOC. 38 C.F.R. § 19.31 (2020) 2. Entitlement to service connection for a lower back disability is remanded An April 2019 Board decision remanded the claim of entitlement to service connection for a lower back disability. The Board directed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination to determine the nature and etiology of any lower back condition. For the purposes of the medical opinion, the examiner was directed to accept as true/fact that the Veteran suffered an in-service back injury. 04/19/2019, BVA Decision. A September 2020 VA examination noted diagnoses of lumbosacral strain, degenerative arthritis of the spine, degenerative disc disease, and right lower extremity radiculopathy of the sciatic nerve. The examiner opined that the Veteran’s lower back condition is less likely than not related to his period of active service. The examiner’s rationale was largely based on the lack of contemporaneous service treatment records. However, the examiner also remarked that the Veteran’s back pain is “just as likely” due to arthritis and degenerative changes related to age as it is to the in-service lower back injury. 09/18/2020, C&P Exam; 09/18/2020, C&P Exam (medical opinion). However, the Board finds that the September 2020 VA examiner’s opinion is unclear as to whether the Veteran’s back condition is likely due to age-related degenerative changes. And, if so, whether the Veteran’s current back pain is just as likely due to his in-service lower back injury. Moreover, the examiner’s rationale was based on the lack of contemporaneous treatment records regarding the Veteran’s lower back injury, but did not clearly accept as true/fact that the Veteran suffered an in-service back injury, as required by the 2019 Board Remand directives (at page 12). As such, the Board finds that the September 2020 VA examination is incomplete. Accordingly, an addendum opinion is necessary to determine the nature and etiology of the Veteran’s lower back disability. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive # 1, obtain an addendum opinion from an appropriate clinician regarding nature and etiology of any lower back condition. An in-person examination is not required unless deemed necessary by the clinician. The clinician should review the virtual file, including a copy of this Remand. The examiner is to address: Whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s claimed low back disability is related to an in-service injury, event, or disease. For the limited purposes of this opinion, the VA examiner is to accept as true/fact that the Veteran suffered an in-service back injury. **See, e.g., 11/0/1/2018 Hearing Transcript, at 13 (describing the in-service back injury).** Note: If needed, the Board will make a full credibility determination at a later date.   The examiner is to provide a comprehensive rationale for any opinion offered. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 3. Thereafter, readjudicate the issues on appeal, to include the higher rating for ischemic heart disease. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.