BVA9503309 DOCKET NO. 93-11 583 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for atherosclerotic cardiovascular disease. 2. Entitlement to an increased rating for rheumatic heart disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active service from April 1955 to April 1959. This appeal is taken from a Regional Office (RO) determination in July 1992, which confirmed and continued a 10 percent evaluation for rheumatic heart disease, and a RO determination in March 1993 which denied entitlement to service connection for coronary artery disease. For reasons which will be outlined in the Remand portion of this decision, the issue of entitlement to an increased rating for rheumatic heart disease will not be finally adjudicated in this appeal. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended that the service-connected rheumatic heart disease is more disabling than the current rating reflects. It is also asserted that manifestations of atherosclerotic cardiovascular disease are for consideration in evaluating the rheumatic heart disease inasmuch as they may not be dissociated, and as such warrant service connection. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a grant of service connection for atherosclerotic cardiovascular disease. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the issue of entitlement to service connection for atherosclerotic cardiovascular disease has been obtained. 2. The veteran has effects of atherosclerotic cardiovascular disease superimposed on service-connected rheumatic heart disease. CONCLUSION OF LAW The superimposed effects of atherosclerotic cardiovascular disease may not be dissociated from the service-connected rheumatic heart disease. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.101 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim as to entitlement to service connection for atherosclerotic cardiovascular disease is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not asserted that any records of probative value that may be obtained and which are not already associated with his claims folder are available. The Board accordingly finds that all relevant facts have been properly developed, and that the duty to assist him relative to that issue, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. As indicated above, the veteran asserts that he has manifestations of atherosclerotic cardiovascular disease which may not be dissociated from his service-connected rheumatic heart disease. The Board finds that this claim is supported by the evidence and applicable law, and that service connection is warranted. The progress of rheumatic heart disease, and the effect of superimposed arteriosclerotic or hypertensive changes, cannot usually be satisfactorily dissociated or separated so as to permit differential service connection. 38 C.F.R. § § 4.14, 4.101 (1993). By a RO determination in May 1992, service connection was established for rheumatic heart disease. That determination was based on the evidence then of record, including service medical records which demonstrate that the veteran had a history of rheumatic fever in service. Post service medical records demonstrate that on VA examination in March 1992, it was noted that the veteran was status post a femoral bypass in 1984, and that he reported he had been treated at a VA medical facility in November 1991 for a stroke. Physical examination revealed an elevated blood pressure. A harsh pansystolic murmur was heard. It was reported that a VA echocardiogram had shown thickened and calcified aortic valves. The diagnoses included "[s]tatus post fem-fem bypass in 1984, most likely secondary to peripheral vascular disease, probably related to atherosclerosis," and "[h]istory of rheumatic fever by report only [with] evidence of damage to the aortic valve, which is consistent with a history of rheumatic fever." VA treatment reports dated from January to October 1992 indicate Doppler studies in February 1992 revealed small carotid plaque in the left bifurcation of no hemodynamic significance. Left middle cerebral artery stenosis was also reported in February 1992. Atherosclerotic cardiovascular disease, carotid vascular disease, hypertension, status post cerebrovascular accident, and one to two plus aortic insufficiency with mild mitral regurgitation, were diagnosed on VA hospitalization in May and June 1992. On VA hospitalization in July 1992, transient ischemic attacks were additionally diagnosed. As noted above, the effect of atherosclerotic disease, as a matter of law, cannot usually be satisfactorily dissociated or separated from the progress of rheumatic heart disease so as to permit differential service connection. 38 C.F.R. § 4.101. The Board agrees that the disabling effects have not been so satisfactorily clinically distinguished in any medical record in the claims file. Therefore, the effects of the appellant's atherosclerotic cardiovascular disease may not be said to have been distinguished when determining the disability evaluation for rheumatic heart disease. Hence, service connection is warranted for the veteran's atherosclerotic cardiovascular disease. The prohibition against the evaluation of the same disability under various diagnoses in 38 C.F.R. § 4.14 (1993) must be considered as well. ORDER Service connection for atherosclerotic cardiovascular disease is granted. REMAND The RO has adjudicated the issue of entitlement to an increased rating for rheumatic heart disease with differentiation of nonservice-connected manifestations of atherosclerotic cardiovascular disease as not for consideration. As indicated above, the Board has granted service connection for atherosclerotic cardiovascular disease, and as such, finds that the effects of the appellant's atherosclerotic cardiovascular disease should be considered when determining the disability evaluation warranted for rheumatic heart disease. Accordingly, the case must be referred to the RO for adjudication of the increased rating issue without dissociation of the superimposed effects of the service-connected manifestations of atherosclerotic cardiovascular disease. Bernard v. Brown, 4 Vet.App. 384 (1993). In addition, additional development of the record should be accomplished in conjunction with this REMAND. The Board observes that the veteran has not been afforded a recent VA examination to determine the nature and severity of the rheumatic heart disease as well as the superimposed effects of atherosclerotic cardiovascular disease. Such findings would be of significant probative value in determining whether increased compensation is warranted. The United States Court of Veterans Appeals (Court) has held that the duty of VA to assist a veteran in the development of facts pertinent to a claim, under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1993), as set forth in Littke v. Derwinski, 1 Vet.App. 90 (1990), requires that VA accomplish additional development of the record if the evidence currently before it is inadequate. To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: The RO should request that the veteran undergo a special VA examination by a cardiologist who has not previously treated or examined him, in order to ascertain the nature and severity of the rheumatic heart disease and atherosclerotic cardiovascular disease. The cardiologist should undertake to elicit medical information relevant to the question of the degree of disability which is attributable to the appellant's rheumatic heart disease and atherosclerotic cardiovascular disease. All indicated special studies should be performed. In particular, the anatomical, and physiological elements of the disability as well as the cardiac functional status and prognosis should be documented. The examiner should be requested to present all findings, and the reasons and bases therefor, in a clear, comprehensive and legible manner on the examination report. The claims folder is to be made available to the examiner prior to this examination. After completion of the above development, the RO should readjudicate the appellant's claim for an increased rating for rheumatic heart disease, with regard to the additional evidence obtained, and also consider the applicability of the pertinent provisions of 38 C.F.R. § 4.101 and § 4.14. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded the appropriate period of time in which to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. U. R. POWELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: As to the service connection issue, under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. As to the increased rating issue, under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).