Citation Nr: 21029514 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-01 025 DATE: May 13, 2021 REMANDED The issue of entitlement to a disability rating in excess of 30 percent from April 23, 2010, to June 16, 2017; and in excess of 30 percent from October 1, 2017, for status-post coronary artery bypass grafting, previously rated as coronary artery disease (CAD), status-post myocardial infarction is remanded. REASONS FOR REMAND The Veteran served in the United States Army from March 1969 to October 1970. The Veteran died in February 2020, and the appellant is his surviving spouse. VA has recognized the appellant to be a proper substitute as claimant for the Veteran's claims pending at the time of his death, as reflected in an April 2020 VA correspondence. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board, first in May 2018 when the issue on appeal was remanded for additional development, and again in October 2019 when the Board issued a decision. In October 2019, the Board denied the claim of entitlement to increased ratings for the Veteran's heart disability. The October 2019 Board decision was appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a December 2020 Joint Motion for Partial Remand (Joint Motion or JMPR); the Court vacated the Board's October 2019 decision, in part, with regard to the denial of an increased rating for the heart disability for the periods mentioned on page 1 of this decision. The Joint Motion explains that the appellant "does not appeal the parts of the Board decision that denied entitlement to a rating greater than 10% from November 5, 2007, to April 23, 2010, for [the heart disability]," nor did the appellant appeal the Board's denial of "entitlement to an effective date later than October 1, 2017, for the reduction from 100% to 30% for a service-connected condition requiring convalescence." The Joint Motion expressed that "the Court should dismiss the appeal as to those matters," and those aspects of the October 2019 Board decision have not been disturbed. The Court remanded the matters from the vacated portion of the October 2019 Board decision back to the Board to take action pursuant to the parties' agreement in the December 2020 Joint Motion. The case has now returned to the Board for further appellate review. The prior Board decisions in this case were issued by a different Veterans Law Judges (VLJs), other than the undersigned. The case has now returned to the Board and been reassigned to the undersigned VLJ for final appellate review. 1. The issue of entitlement to a disability rating in excess of 30 percent from April 23, 2010, to June 16, 2017; and in excess of 30 percent from October 1, 2017, for status-post coronary artery bypass grafting, previously rated as CAD, status-post myocardial infarction is remanded. The January 2021 Joint Motion explains: the parties agree that the Board erred when it denied a rating greater than 30% for status-post coronary artery bypass grafting, previously rated as CAD, from April 23, 2010, to January 16, 2017, because it failed to address a May 2012 examination in which an examiner estimated the Veteran's METs (metabolic equivalent units) level to be 1-3 METs, with symptoms of dyspnea, fatigue, and angina.... While the examiner stated that the Veteran's METs level limitation was not due solely to his heart condition and that it was not possible to estimate the percentage due to his heart condition, the parties agree that the May 2012 examination is relevant evidence that the Board must address in the first instance. The Joint Motion further explains: Second, the parties agree that the Court should vacate and remand the part of the Board decision that denied entitlement to a rating greater than 30% for status-post coronary bypass grafting, previously rated as CAD, from October 1, 2017, because the Board failed to address arguments submitted by Appellant's counsel in March 2019 in response to the February 2019 Supplemental Statement of the Case (SSOC).... In the March 2019 SSOC Response, Appellant's counsel asserted that the January 2019 VA examiner "did not explain how he parsed out the METs for each specific service-connection and non-service-connected origin," and that this was "required by the tenets of Howell v. Nicholson, 19 Vet. App. 535, 540 (2006)." .... Accordingly, Appellant's counsel requested that "VA return the file to the examiner for a clarification addendum addressing the proper parsing of symptoms and how that occurred." .... [T]he Board did not address Appellant's counsel's argument that VA was required to return [] the file to the examiner for a clarification addendum. The Howell case, cited by the Veteran's representative and the Joint Motion, discusses that when a claimant seeking veterans' benefits has both service-connected and non-service-connected disabilities, the Board of Veterans' Appeals must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Pertinently, the holding in Howell provides that statements from medical professionals attributing impairment to a combination of service-connected and non-service-connected disabilities in that case "lacked the proper foundation to be given any weight" and "do not constitute competent medical evidence because they are not enhanced by any additional medical comment by the medical examiner," such that "the Board erred by relying on them." Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). In this case, the March 2019 VA examination report includes a finding that the Veteran's "interview-based METs test" revealed that the Veteran experienced dyspnea and fatigue at an exertional level of ">3-5 METs," but this was -not- "due solely to the heart condition." The March 2019 VA examiner determined that the Veteran's "estimated METs level due solely to the cardiac condition" was ">5-7 METs." The VA examiner's rationale for this determination stated: "Patient says he ha[s] arthritis of knee and back, also morbid obese, COPD, sleep apnea which restricts patient's MET level." In light of the concerns expressed in the Joint Motion, and seeking to ensure fully informed appellate review with particular attention to those concerns, the Board has reviewed the adequacy of the March 2019 VA examiner's discussion of rationale for estimating the level impairment attributable to the service-connected heart disability alone. The Board finds that the presented rationale essentially cites the Veteran's list of reported examples of additional disabilities that produce impairment of the Veteran's METs level, without explaining how the estimate regarding the particular threshold of METs associated with the heart disability, considered alone, was determined. The Board finds that it is most reasonable to remand this matter, consistent with the request of the Veteran's representative and now the substituted appellant's representative. In an April 2021 brief, the appellant's representative referred to the past request to "return the file to the examiner for a clarification addendum addressing the proper parsing of symptoms and how that occurred," and reiterated the assertion of "the need for a clarification addendum to address the January 2019 examiner's METs estimates." The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran received for the disability on appeal. 2. Obtain an addendum medical opinion by an appropriate clinician with regard to the Veteran's status-post coronary artery bypass grafting, previously rated as CAD, status-post myocardial infarction, as to the following: The January 2019 VA heart disability rating examination report, consistent with other evidence of record, indicates that the Veteran had multiple disabilities that, in addition to his heart disability, caused impairment limiting his exertional capacity in terms of METs thresholds productive of symptoms such as dyspnea and fatigue. The January 2019 VA examination report provides an estimate of the Veteran's exertional capacity in terms of such a METs threshold (">3-5 METs"), and then presents a distinct estimate of a lesser impairment attributable specifically to the heart disability in isolation / considered alone in terms of a higher METs threshold (">5-7 METs"). However, the January 2019 VA examination report does not adequately explain the basis for determining its estimation of the extent of impairment representing the severity of the Veteran's heart disability (in contrast to the greater degree of impairment of exertional capacity attributable to the combination of all of the Veteran's disabilities). With attention to the Veteran's clinical findings and medical history presented by the available evidence, please clarify / explain the medical basis for the January 2019 VA examination report's finding that the severity of the Veteran's heart disability in isolation / considered alone, was productive of impairment limiting his exertional capacity to ">5-7 METs" as distinguished from his overall impairment with greater limitation of exertional capacity. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran's statements are competent to report symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.