Citation Nr: 0000101 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 95-33 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased rating for coronary artery disease, currently rated as 60 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran had active duty from March 1963 to August 1963 and from February 1980 to October 1989. This appeal came before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision of the Hartford, Connecticut Regional Office (RO) of the Department of Veteran's Affairs (VA). In a December 1998 RO rating decision, a 60 percent rating was assigned effective from May 1, 1995 and a 100 percent rating was assigned for the period from June 24, 1998 to August 1, 1998, based on surgery and convalescence. Prior to the grant of an increased rating, the heart condition had been rated 30 percent disabling. The veteran has expressed continued dissatisfaction with the 60 percent rating. Inasmuch as a higher evaluation is potentially available, and as the issue of an increased rating was already in appellate status at the time of the December 1998 rating action, the Board will consider entitlement to an increased rating for coronary artery disease for the entire appeal period. See AB v. Brown, 6 Vet. App. 35, 38 (1993). REMAND As a preliminary matter, the Board finds that the veteran's claim for an increased rating is capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim that a service- connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). Submission of a well-grounded claim invokes VA's duty to assist the veteran in developing relevant facts. 38 U.S.C.A. § 5107(a). The duty to assist includes obtaining an accurate and fully descriptive medical examination. 38 C.F.R. § 4.1, 4.2 (1999); Littke v. Derwinski, 1 Vet. App. 90, 93 (1995); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). This case was before the Board in January 1998. At that time, the case was remanded to the RO for a fresh VA examination sufficient to address the rating criteria of 38 C.F.R. § 4.104 Diagnostic Code 7005, both prior to and as of January 12, 1998. The prior rating schedule provides the following criteria: AHD, during and for 6 months following acute illness from coronary occlusion or thrombosis with circulatory shock, will be rated 100 percent. After six months, with chronic residual findings of congestive heart failure or angina on moderate exertion or when more than sedentary employment is precluded, AHD will be rated 100 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005 (effective prior to January 12, 1998). The revised rating schedule provides the following: A 100 percent rating is warranted when there is documented coronary artery disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005 (effective January 12, 1998). Moreover, 38 C.F.R. § 4.104, Note (2) (effective January 12, 1998) provides: When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing, or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. VA examined the veteran in March and August 1998. The March 1998 VA heart examination report does not indicate the level of metabolic equivalents (METs) that resulted in dyspnea, fatigue, angina, dizziness, or syncope; however, it does note that the veteran was pre-syncope and that exercise was limited by shortness of breath and chest pain. The cardiac catheterization report also notes that the veteran's ejection fraction was approximately 60 percent. The examiner did not comment on whether the veteran was precluded from more than sedentary employment due to his service-connected heart condition or whether there were chronic residual findings of congestive heart failure or angina on moderate exertion. The veteran underwent right and left carotid endarterectomies in June and July 1998. Subsequently, his right eye blindness disappeared but tremor of the right hand and right side weakness remained. The August 1998 VA heart examination report indicates that the current diagnoses included arteriosclerotic heart disease (AHD), generalized arteriosclerosis, and angina pectoris. The examiner did not comment on whether the veteran was precluded from more than sedentary employment due to his service-connected heart condition or whether there were chronic residual findings of congestive heart failure or angina on moderate exertion; however, an exercise stress test was ordered. A September 1998 addendum report notes that the veteran had a regular exercise stress test on September 23, 1998. The addendum report notes that the stress test was non-diagnostic due to failure to reach target heart rate. The examiner did not say why target heart rate was not reached. No level of METs was supplied and the examiner did not offer an estimation (expressed in METs) of the level of activity that results in dyspnea, fatigue, angina, dizziness, or syncope. Neither the March nor the August 1998 VA examination report contains information sufficient to determine whether the veteran has met the criteria for a 100 percent rating under either rating criteria. Thus, the Board's previous remand orders were not complied with. The Board acknowledges, and commends, the RO's repeated efforts in this case to obtain examination findings sufficient to address the rating criteria. Nevertheless, the United States Court of Veterans Appeals recently held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the aforementioned reasons, the case is REMANDED to the RO for the following actions: 1. After obtaining the necessary authorization(s) from the veteran, the RO is to request and associate with the claims file copies of any relevant medical records for treatment he has received since his August 1998 VA heart examination. If such records are not available, the RO should clearly document that fact in the claims file. 2. After receiving and associating the above- mentioned records, if available, with the veteran's claims file, the veteran should be scheduled for a VA heart evaluation. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The examiner should review the claims file, examine the veteran and provide findings that take into account the former and revised provision of the rating schedule: (a) If medically feasible, the veteran should be afforded an exercise stress test. The level of METs that results in dyspnea, fatigue, angina, dizziness, or syncope should be reported. If the level of METs that results in dyspnea, fatigue, angina, dizziness, or syncope cannot be reported for medical reasons, then the examiner must so state and must give an estimation of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing, or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope. (b) The examiner should state whether or not the veteran's heart condition precludes more than sedentary employment. (c) The examiner should state whether or not there is angina on moderate exertion. (d) The examiner should state whether or not there is chronic congestive heart failure, or residual findings of congestive heart failure. 3. All examination findings along with complete rationale of opinions and conclusions should be set forth in a type written report. 4. The RO should undertake any additional development suggested by the examiner's findings and opinions, or lack thereof. 5. Following completion of the foregoing, the RO should then review the claims file and ensure that all of the above mentioned development has been completed in full. If any development is incomplete or deficient in any manner, appropriate corrective action is to be implemented. The RO should then readjudicate the claim. If the determination remains unfavorable to the veteran, he and his representative should then be provided with a supplemental statement of the case and afforded the appropriate period of time in which to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain further development and ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). J. E. Day Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).