Citation Nr: 21028666 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-06 048 DATE: May 11, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for coronary artery disease, status post coronary artery bypass graft, is remanded. Entitlement to an initial compensable rating for residuals scars, status post coronary artery bypass graft, is remanded. Entitlement to service connection for a bilateral foot disability, to include tarsal tunnel syndrome and neuropathy, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1966 to May 1969. These matters came before the Board of Veterans' Appeals (Board) from January 2015 and April 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the matters on appeal for additional development. The Board also remanded the issue of entitlement to a finding of individual unemployability (TDIU). Following the September 2020 Supplemental Statement of the Case (SSOC), in October 2020, the Veteran requested a higher level of review under the newly-effective Appeals Modernization Act (AMA) structure, and the RO withdrew the issue of entitlement to a TDIU under the legacy system. In a September 2020 rating decision, service connection was granted for residuals scars, status post coronary artery bypass graft, and a noncompensable rating was assigned effective October 9, 2014. The Board took jurisdiction of this issue as it is part and parcel of the Veteran's claim for a higher rating for coronary artery disease. In November 2020, the Board remanded the issues for further development. Unfortunately, another Remand is necessary here, for the reasons explained below. Outstanding medical records In June 2018, the Veteran identified private treatment records from Dr. Hughes and Dr. Reilly. The RO notified the Veteran of the first attempt to obtain the identified records. VA received responses from Dr. Hughes and Dr. Reilly that there was missing written consent and patient authorization. There were no follow-up requests to obtain those records. The November 2018 statement of the case indicated that records from Dr. Reilly (Crystal Clinic Ortho Center) were received, but, again, there is only a request for patient authorization. The September 2019 Board Remand requested that any outstanding private treatment records and test results be identified and associated with the claims file, and the Veteran was provided a letter asking him to complete release forms for any relevant health care provider, but the RO was not advised to make follow-up requests to the aforementioned physicians. The September 2020 Board Remand requested that updated and complete releases be obtained from the Veteran to secure the records from Dr. Hughes and Dr. Reilly. In November 2020 correspondence issued to the Veteran, VA requested that the Veteran complete appropriate releases pertaining to Dr. Hughes and Dr. Reilly; the Veteran did not complete new releases. The Veteran's attorney was copied (cc) on the letter at his address of record. Per a March 2021 submission from the Veteran's attorney, it was indicated that he had not received a copy of the November 2020 letter. While the Veteran's attorney was copied on the November 2020 letter and while it is presumed that the letter was also sent to the Veteran's attorney, a copy of the letter sent to the attorney is not of record. Thus, it is not clear if appropriate notice was issued. With regard to obtaining the records, the Veteran's attorney stated that the Veteran had filed valid releases in July 2020 in order to facilitate future requests for private medical treatment records. On July 9, 2020, the Veteran submitted completed releases pertaining to medical providers other than Dr. Hughes and Dr. Reilly. Such releases cannot be used to obtain records from Dr. Hughes and Dr. Reilly. The most recent releases pertaining to Dr. Hughes and Dr. Reilly were completed in June 2018, which were deemed incomplete by the medical providers. Updated releases must be completed in order for VA to obtain records from these medical providers. On Remand, VA should ensure issuance of the development letter to the Veteran and his attorney regarding obtaining releases for Dr. Hughes and Dr. Reilly. Upon obtaining appropriate releases, records should be requested from Dr. Hughes and Dr. Reilly. The Board also notes that while VA has a duty to assist the Veteran in the development of his claims, the Veteran has a duty to cooperate with VA. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Coronary artery disease In February 2021, the Veteran underwent a C&P examination to assess the severity of his coronary artery disease. The examiner stated that his interview-based METs test shows workload between 1-3 METs resulting in dyspnea, fatigue, angina, and dizziness. The examiner commented that the limitations in METs is due to multiple medical conditions including the heart condition and it is not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The examiner noted that the Veteran has severe COPD with desaturation on exertion. This, in addition to his age and deconditioning, is the primary limitation measured by the interview-based METs. His heart function is measured normal with EF 82 percent. Unfortunately, such findings do not allow for determination of a proper rating per 38 C.F.R. § 4.104, Diagnostic Code 7017. On Remand, the Veteran should be afforded an examination with a cardiologist to assess the severity of his coronary artery disease, to include the findings of an interview-based METs test. Bilateral foot disability The January 2021 C&P examination pertaining to the feet reflects diagnoses of flat foot; metatarsalgia; hammer toes; hallux rigidus; degenerative arthritis; and, peripheral neuropathy. The examiner did not proffer an etiological opinion regarding his hallux rigidus; thus, remand is necessary. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Hughes and Dr. Reilly. Such development request should also be sent to the Veteran's attorney of record. Make two requests for the authorized records from Dr. Hughes and Dr. Reilly, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA cardiology examination with a cardiologist to determine the severity of his coronary artery disease. Any indicated diagnostic tests and studies should be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner is requested to provide an estimate of the level of activity expressed in METS (metabolic equivalents) resulting in dyspnea, fatigue, angina, dizziness or syncope due to his coronary artery disease; the episodes of congestive heart failure, if any; and the degree of left ventricular dysfunction expressed in percentage of ejection fraction. The examiner is requested to comment on whether the Veteran's coronary artery disease is manifested by chronic congestive heart failure. 3. Request that the January 2021 C&P examiner (or another qualified examiner if the January 2021 examiner is unavailable) review the claims folder and provide an opinion as to whether it is at least as likely as not that hallux rigidus is due to service, to include the foot symptoms he reports experiencing during service. A full and complete rationale for the opinion expressed is required. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.