Citation Nr: 22043500 Decision Date: 08/01/22 Archive Date: 08/01/22 DOCKET NO. 09-26 488 DATE: August 1, 2022 REMANDED Entitlement to a disability rating higher than 60 percent for service-connected cardiomyopathy prior to October 28, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1999 to July 2002. The Veteran was granted service connection for cardiomyopathy in an October 2006 rating decision, and it was rated as 60-percent disabling retroactively effective from July 30, 2002, so as of the day following conclusion of his service. In response, he submitted a Notice of Disagreement (NOD) in August 2007, requesting a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999). Following an April 2009 hearing before a local Decision Review Officer (DRO), the Veteran a VA examination in June 2009, and an addendum medical opinion was obtained in July 2009. He underwent another VA examination in November 2010. In April 2014, the Veteran testified in support of this claim during a hearing before the undersigned Veterans Law Judge of this Board. This claim subsequently was remanded in October 2014 to afford the Veteran another VA examination to address his contention that his disability had worsened appreciably since his then most recent November 2010 VA examination. He had this additional VA examination in October 2014. In a subsequent April 2015 decision, primarily based on the results of that VA examination, the Board granted a higher, 100 percent, disability rating for the Veteran's service-connected cardiomyopathy effective October 28, 2014, the date of that VA examination. The Board also however remanded the issue of entitlement to a disability rating higher than 60 percent prior to October 28, 2014, so the local Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ) could obtain outstanding private cardiology records as well as an addendum medical opinion addressing the extent to which the Veteran's cardiomyopathy affected his employment and whether his metabolic equivalents of task (METs) scores and ejection fraction results were not true indicators of the severity of his heart disability. To this end, an addendum medical opinion was obtained in July 2015; however, the Board again remanded this remaining issue in January 2019, finding that the July 2015 VA medical opinion had failed to answer any of the questions posed in the earlier April 2015 Board remand directives. In March 2020, another addendum VA medical opinion was obtained. But the Board again remanded the claim in July 2020 because the VA examiner again had failed to answer the questions posed in the remand directives. Regrettably, yet another remand is required because of the continued failure to respond to the questions posed in the prior remands. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (requiring that VA adjudicators ensure the adequacy of an examination and medical opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). The Board begins by noting that the October 2014 VA examiner found that the Veteran's clinical test results (e.g., METS) were not the best indicators of the severity of his service-connected cardiomyopathy and that he had "moderate global dysfunction," indicating his heart was "not pumping correctly...representing heart failure that will continue to deteriorate." But while, as already mentioned, this was sufficient to support the award of a higher rating from the date of that examination, it remained unclear whether the same was true for the period prior to that date that also is at issue in this appeal. Consequently, the Board's April 2015 remand requested an addendum opinion to clarify this issue and determine whether, at any point prior to October 28, 2014, the Veteran's clinical testing (e.g., METs or left ventricular ejection fraction) was similarly inaccurate in capturing the true severity or essence of his cardiomyopathy and, if so, whether his disability was productive of symptoms more nearly approximating the chronic congestive heart failure (CHF). The Board remanded this claim not just in April 2015 but also more recently in January 2019 and July 2020 to obtain this needed addendum VA medical opinion addressing this inquiry; but, thus far, each VA examiner has failed to answer the questions posed in the remand directives. Following the most recent July 2020 Board remand, an addendum opinion was obtained in April 2022. Notably, however, this opinion was completed by the same examining clinician as the prior March 2020 VA supplemental medical opinion and again it is unresponsive to the questions the Board posed. Although the VA clinician provides a detailed account of the procedural history of this case, the Veteran's symptoms throughout the appeal period, and annotations of several medical reference citations, the examiner primarily opines on subjects not germane to the actual claim at issue. For example, the VA examiner discusses at great length his opinion that the Veteran's cardiomyopathy is attributable to a health condition pre-existing his military service. But this was not the question asked of the examiner and, in fact, the Board even had pointed out when remanding this claim that the etiology of the Veteran's cardiomyopathy in relation to his military service is no longer at issue since service connection long since has been granted for this disability (meaning it already has been conceded that his military service caused or aggravated it). The more critical question now is its severity prior to October 28, 2014, meaning when it was rated as 60-percdent disabling before the increase in rating to 100 percent as of that date. The higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has recognized that a "retrospective" medical opinion is needed in this circumstance. See Chotta v. Peake, 22 Vet. App. 80 (2008). Moreover, the Veteran's Court has explained that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. See McGrath v. Gober, 14 Vet. App. 28 (2000). See also Swain v. McDonald, 27 Vet. App. 219, 223-24 (2015) (holding that assigning the effective date of an increased rating is not a mechanical exercise of just applying the date of the VA or other examination that warranted the increase). In Swain, the CAVC observed that, in many cases, VA adjudicators assign increased ratings from the date the VA or private examination occurred when the report is the basis of the awarded increase. However, the CAVC repeatedly grants Joint Motions for Remand (JMRs), Joint Motions for Partial Remands (JMPRs) and issues Memorandum Decisions that vacate and remand Board decisions under Swain, particularly when the examination report or other evidence of record, including lay evidence, suggests the increase in severity of the disability began prior to the date of the examination. This is worth mentioning since, as already explained, the increase in rating for the cardiomyopathy from 60 to 100 percent as of October 28, 2014, was based on the results of a VA examination on that date. In addition, although the VA examiner concluded the Veteran's cardiomyopathy was less likely than not productive of symptoms more nearly approximating chronic CHF, the examiner almost verbatim provided the same rationale as the prior March 2020 VA medical opinion, which already was deemed inadequate. See, e.g., April 2022 VA Medical Opinion pp. 6-7. Therefore, the Board has no choice but to again request even more medical comment. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Again, forward the record to an appropriate provider as a supplement to the March 2020 and April 2022 examiners' opinions for an addendum opinion regarding the severity of the Veteran's service-connected cardiomyopathy prior to October 28, 2014. After considering the relevant evidence and noted deficiencies in those prior opinions, the examiner again is asked to opine on whether it is at least as likely as not (approximately 50 percent or greater probability) the Veteran's cardiomyopathy was productive of symptoms more nearly approximating chronic CHF prior to October 28, 2014. In making this determination, the opining clinician should discuss the following: (a) whether documented METs testing and left ventricular ejection fractions are the most accurate indicators of the severity of the Veteran's cardiomyopathy prior to October 28, 2014 (as the October 2014 examiner believed they were not at that time); AND (b) the conflicting medical evidence of record regarding a potential history of CHF to include, but not limited to, the October 2014 VA examination report indicating no history of chronic CHF, but the prior November 2010 VA examination report conversely indicating a positive history of chronic CHF albeit with none found on the then current physical examination, February 2011 VA records showing the Veteran was started on "ACE" and "BB" for "BP control and CHF," February 2013 VA records showing he was on a "low salt diet, medications, [and] exercise" to manage [CHF] and that he was educated on "signs and symptoms of CHF exacerbation and daily weight monitoring," and August 2013 VA records showing his treatment goals included "[p]revention & early recognition and treatment of CHF exacerbation. *To reiterate, the Board is needing this additional medical comment to try and resolve this conflicting evidence or at least provide some means of reconciliation of it. To this end, it is asked the examiner focus on the severity of the service-connected disability (cardiomyopathy) prior to October 28, 2014, not instead so much on the etiology or origins of it including in terms of whether it pre-dated the Veteran's military service since it already has been determined to be a service-connected disability and this appeal now concerns instead, the "downstream" issue of whether it was appropriately rated as 60-percent disabling prior to October 28, 2014 (on that date the rating was increased to 100 percent). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.