Citation Nr: 0334366 Decision Date: 12/10/03 Archive Date: 12/16/03 DOCKET NO. 02-01 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for inclusion body myositis as secondary to service-connected atherosclerotic cardiovascular disease with angina, status post coronary artery bypass graft times four (herein after referred to as cardiovascular disease). REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from October 1968 to October 1971. The current appeal to the Board of Veterans' Appeals (Board) arose from a November 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The RO, in pertinent part, denied entitlement to compensation benefits for neurological deficits in all extremities pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002) secondary to coronary artery bypass graft surgery performed by VA. The RO also denied entitlement to a total disability rating for compensation purposes on the basis of individual unemployability (TDIU). The Board notes that the more recent statements of the veteran on appeal establish that his preference is to base his claim on a secondary service connection theory which the RO has addressed. The Board also notes that the veteran's September 2000 notice of disagreement also addressed the RO's November 1999 denied of entitlement to a TDIU. This issue is addressed in the remand portion of this decision. FINDING OF FACT The probative and competent medical evidence of record establishes that inclusion body myositis cannot satisfactorily be dissociated from service-connected cardiovascular disease on the basis of aggravation. CONCLUSION OF LAW Inclusion body myositis is aggravated by service-connected cardiovascular disease. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2003); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Associated with the claims file is a substantial quantity of VA treatment records and examination reports referable to diagnosis and treatment of the veteran for inclusion body myositis. SMC, MD, a VA physician conducted a medical examination of the veteran on January 19, 2001. He recorded that he had been asked to opine as to the specific nature of the veteran's diagnosis and the relationship of the diagnosis to coronary artery bypass surgery in 1993. Dr. SMC advised that he had the opportunity to review the pertinent medical records. He acknowledged that he did not claim expertise in the diagnosis of inclusion body myositis. Dr. SMC recorded that the veteran described significant fatigue and progressive weakness and inability to do very active physical activities beginning in the early 1990s, before his cardiac surgery. In 1993 he underwent extensive coronary artery bypass surgery with coronary bypass grafting. Subsequently thereto he developed a compression neuropathy of the right arm, progressive weakness. In 1994 a friend pointed out to him that he had muscle wasting. By 1997 he was having deformity muscle wasting and weakness. At that time, extensive evaluation for myopathy was begun. In summary, he was found to have severe inflammatory myopathy. Currently, the veteran was suffering from marked diffuse weakness. Examination concluded in a diagnosis of inclusion body myositis. Dr. SMC suspected that this disorder had been present for years and had almost certainly preceded the 1993 coronary artery bypass surgery. Dr. SMC recorded that the veteran clearly had a change in the tempo of his inclusion body myositis with his coronary bypass surgery, in that within a month or so he began having more pronounced weakness and fatigue. Dr. SMC expressed the opinion that overall it was more likely than not that the 1993 surgery accelerated his myositis. Dr. SMC acknowledged that it was of course impossible to say what would have happened without surgery. However, if indeed the surgery worsened his condition, it seemed likely that he would be less disabled at this time. A precise quantification could not be made. DS, MD, a VA physician conducted an examination of the veteran on January 23, 2001. She recorded that the veteran had been diagnosed with coronary artery disease and chronic inflammatory myopathy. Her examination of the veteran concluded in diagnostic impressions of coronary artery disease status post coronary artery bypass graft in 1993, and inflammatory myositis. In her opinion, the veteran's inflammatory myositis was unlikely to be caused by or aggravated by his coronary artery disease or his surgery on November 29, 1993. In an April 2001 medical statement, Dr. DS advised that inclusion body myositis was idiopathic with unknown cause, and that she agreed with Dr. SMC that the progressive weakness and surgery could have resulted in onset of the veteran's myopathy. Dr. SMC again performed a VA examination of the veteran in August 2001. He concluded that for reasons outlined in his previous note, he thought it was certainly possible that the severe stress of the 1993 coronary artery bypass surgery, with the release of a whole variety of inflammatory cytokines, could well have abruptly worsened his myositis. He knew of no way to prove or disprove this hypothesis. Dr. DS again examined the veteran for VA in November 2001. She concluded it was unlikely that his coronary artery bypass graft could have caused his inflammatory myositis. Criteria Secondary Service Connection Service connection may be granted for a disorder that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2002); Allen v. Brown, 7 Vet. App. 439 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2002). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Preliminary Matter: Duty to Notify & to Assist At the outset, it should be noted that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the CAVC in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, §7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions). On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register. The portion of these regulations pertaining to the duty to notify and the duty to assist are also effective as of the date of the enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). The Board, however, is satisfied that all necessary development pertaining to the issue of entitlement to service connection for inclusion body myositis as secondary to service-connected cardiovascular disease has been properly undertaken. The Board is confident in this assessment because the evidence as presently constituted is sufficient in establishing a full grant of the benefit sought on appeal. Therefore, any outstanding development not already conducted by VA is without prejudice; hence, any deficiencies in the duties to notify and to assist constitute harmless error. Secondary Service Connection The veteran claims that he suffers from inclusion body myositis as secondary to his service-connected cardiovascular disease. The probative and competent medical evidence of record establishes that inclusion body myositis cannot satisfactorily be dissociated from service-connected cardiovascular disease on the basis of aggravation. The claims file contains support for the veteran's contentions. In this regard, there are January, April, and August 2001 examination reports which show that the examiners were of the opinion that inclusion body myositis was accelerated or aggravated by the service-connected cardiovascular disease. There are two contrary opinions of record. The veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, as is the veteran's case at hand. Accordingly, the Board finds that the veteran's inclusion body myositis cannot satisfactorily be dissociated from his service-connected cardiovascular disease, thereby warranting entitlement to a grant of secondary service connection on the basis of aggravation. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The veteran has long argued that his inclusion body myositis, which he does not claim is due to service or causally related to his service-connected cardiovascular disease, is exacerbated or aggravated thereby. The Board reiterates that to prevail on a claim of entitlement to service connection on a secondary basis, service connection may be granted for a disorder that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The veteran's inclusion body myositis, has been related to his service-connected cardiovascular disease on the basis of aggravation in view of the probative and competent medical evidence of record. In view of the foregoing, the Board finds that the evidentiary record supports a grant of entitlement to service connection for inclusion body myositis as secondary to the service-connected cardiovascular disease. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). ORDER Entitlement to service connection for inclusion body myositis as secondary to service-connected cardiovascular disease is granted. REMAND This claim must be afforded expeditious treatment by the Veterans Benefits Administration Appeals Management Center (VBA AMC). The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (CAVC) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs (or VBA AMC) to provide expeditious handling of all cases that have been remanded by the Board and the CAVC. See M21-1, Part IV, paras. 8.43 and 38.02. The CAVC has held that section 5103(a), as amended by the Veterans Claims Assistance Act of 2000 (VCAA) and § 3.159(b), as recently amended, require VA to inform a claimant of which evidence VA will provide and which evidence claimant is to provide, and remanding where VA failed to do so. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 202); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). The RO has not issued a VCAA notice letter to the appellant in connection with his claim of entitlement to a TDIU. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F. 3d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (CAFC) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C. § 5103(b)(1). The CAFC made a conclusion similar to the one reached in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The CAFC found that the 30-day period provided in § 3.159(b)(1) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. As the Board noted earlier, the veteran's notice of disagreement (NOD) with the RO's November 1999 rating decision included the denial of entitlement to a TDIU. Where there has been an initial RO adjudication of a claim and an NOD has been filed as to its denial the claimant is entitled to a statement of the case (SOC), and the RO's failure to issue an SOC is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995); see also Bernard v. Brown, 4 Vet. App. 384 (1993). A remand is required in this case because the appellant has not been provided with an SOC pertaining to the issue of entitlement to a TDIU. The Board observes that additional due process requirements may be applicable as a result of the enactment of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). Accordingly, the case is remanded to the VBA AMC for further action as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The VBA AMC should furnish the appellant an SOC addressing the November 1999 rating decision, wherein entitlement to a TDIU was denied. The VBA AMC should also advise the appellant of the need to timely file a substantive appeal to the Board if he desires appellate review. 3. The VBA AMC must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), and any other applicable legal precedent. Such notice should specifically apprise the appellant of the evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information, and of the appropriate time limitation within which to submit any evidence or information. 38 U.S.C.A. § 5103(a) and (b) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). A record of his notification must be incorporated into the claims file. 4. The VBA AMC should then conduct any necessary development brought about by the appellant's response and issue a supplemental statement of the case if necessary. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the VBA AMC. ______________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2