Citation Nr: 0909390 Decision Date: 03/13/09 Archive Date: 03/26/09 DOCKET NO. 06-17 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for coronary artery disease (CAD), status post bypass surgery associated with hypertension, for the time period from December 19, 2003 to July 6, 2004. 2. Entitlement to an initial rating greater than 30 percent for CAD, status post bypass surgery associated with hypertension, for the time period from July 6, 2004 to June 26, 2007 (rated as 100 percent thereafter). 3. Entitlement to an initial evaluation in excess of 10 percent for hypertension. 4. Entitlement to an extraschedular evaluation for service- connected disabilities. 5. Entitlement to an effective date earlier than December 19, 2003 for the awards of service connection for hypertension and CAD status post bypass surgery associated with hypertension. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran had active service from September 1973 to December 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has appealed the initial ratings assigned for service-connected CAD and hypertension. As a result of RO rating decisions during the appeal, the Veteran has been assigned staged ratings for his service- connected CAD. The Board has rephrased the issues to reflect that staged ratings are in effect. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran has also pursued, and perfected an appeal, the issue of entitlement to VA compensation prior to December 2003 for his service-connected CAD and hypertension. The RO has phrased the issue as "[e]ntitlement to an effective date, prior to June 27, 2007, for increased evaluation of 100 percent for CAD status post bypass surgery with hypertension." The October 2008 Statement of the Case (SOC) addressed the issue of whether service connection could be warranted for an earlier time period based upon the filing of a claim, which is the crux of this issue. As such, the Board has rephrased this issue to better reflect the claim on appeal. Finally, in pursuing the initial rating claims, the Veteran has argued that his CAD has rendered him unemployable, thereby inferring marked interference with employability. This raises the issue of whether the Veteran may be entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321(b), which is inextricably intertwined with the initial rating claims but may be separately adjudicated and remanded, if necessary. See VAOPGCPREC 6-96 (Aug. 16, 1996). Therefore, this issue has been placed on the title page. The entitlement to consideration of an extraschedular rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the inception of the appeal, the medical evidence reasonably shows that the Veteran's CAD was manifested by a left ventricular ejection fraction (LVEF) of less than 50 percent but, prior to April 28, 2005, did not result in an LVEF of 30 percent or less, in a workload of 3 METS or less, or congestive heart failure. 2. Beginning on April 28, 2005, the lay and medical evidence reasonably shows that the Veteran's CAD resulted in a workload of 3 METS. 3. Throughout the rating period on appeal, the Veteran's hypertension has not been productive of diastolic pressure predominantly of 110 or more, or systolic pressure predominantly of 200 or more. 4. Prior to December 19, 2003, the Veteran had not filed a formal or informal claim of service connection for hypertension and/or CAD. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating, but no higher, for CAD, status post bypass surgery associated with hypertension have been met effective December 19, 2003. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.104, Diagnostic Codes (DC's) 7005, 7017 (2008). 2. The criteria for a 100 percent rating for CAD, status post bypass surgery associated with hypertension, have been met effective April 28, 2005, but the criteria for a rating greater than 60 percent prior to this time have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1- 4.14, 4.104, Diagnostic Codes (DC's) 7005, 7017 (2008). 3. The criteria for an initial disability rating greater than 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, and 4.104, DC 7101 (2008). 4. The criteria for entitlement to an effective date earlier than December 19, 2003 for the awards of service connection for hypertension and CAD status post bypass surgery associated with hypertension have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.158, 3.400 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria - Initial Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Moreover, as these claims stem from an appeal of the initial ratings assigned, they require consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2008). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2008). The diagnostic criteria for DC 7005, for arteriosclerotic heart disease or CAD, and for DC 7017, for coronary bypass surgery, are identical. A 100 percent rating is assigned for three months following hospital admission for surgery. 38 C.F.R. § 4.104, DC 7017. Thereafter, a 10 percent rating is assigned when the evidence shows workload of greater than 7 METS but not greater than 10 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication is required. A 30 percent rating is assigned for workload of greater than 5 METS but not greater than 7 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned if there is more than one episode of acute congestive heart failure in the past year; or, workload of greater than 3 METS but not greater than 5 METS results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned with 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, DC's 7005, 7017. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METS at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METS 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. 38 C.F.R. § 4.104, Note 2. DC 7101(Hypertensive vascular disease) provides for a 10 percent rating for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or minimum evaluation for a history of diastolic pressure predominantly 100 or more that requires continuous medication for control. In order for the Veteran to be entitled to a 20 percent disability rating for his service-connected hypertension, the medical evidence must show that his diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. 38 C.F.R. § 4.104, DC 7101. Effective October 6, 2006, VA amended the Schedule for Rating Disabilities by adding guidelines for evaluating certain respiratory and cardiovascular disorders, including an explanation that hypertension will be separately evaluated from hypertensive and other heart diseases. 71 Fed. Reg. 52457-01 (Sept. 6, 2006). This clarification is currently codified at 38 C.F.R. § 4.104, DC 7101 Note (3). The Board observes that the proposed rule for 38 C.F.R. § 4.104, DC 7101 Note (3) indicated that, as a result of amendments to 38 C.F.R. § 4.104 in 1997, hypertensive heart disease has been evaluated under the same criteria for evaluating other heart diseases. These disorders are evaluated on the basis of the results of exercise testing expressed in METs, the presence of congestive heart failure, the ventricular ejection fraction, etc. Importantly, since 1997, hypertensive heart disease is no longer evaluated on the basis of blood pressure readings. As such, VA determined that the criteria of DC's 7005 and 7101 do not overlap, so that separate ratings are not prohibited under 38 C.F.R. § 4.14. Generally, in a claim for an initial or increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312- 13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000). In amending 38 C.F.R. § 4.104, DC 7101 Note (3), VA determined that the provision shall apply to all applications for benefits filed on or after October 6, 2006. 71 Fed. Reg. 52457-01 (Sept. 6, 2006). Given that this amendment clarifies that the criteria of DC's 7005 and 7101 in effect since 1997 have never overlapped, the Board finds no impediment to applying these principles for the entire appeal period. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding that such symptomatology exists. See Barr v. Nicholson, 21 Vet. App. 303 (2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Initial Rating - CAD By way of background, the Veteran underwent stent placement in 1999 and triple bypass surgery in 2000, all through non-VA providers. In December 2003, he submitted his original claim of service connection for hypertension. In a rating decision in March 2005, the RO granted service connection for hypertension and CAD, status post bypass surgery associated with hypertension. The RO assigned separate initial 10 percent ratings effective December 19, 2003. In a supplemental statement of the case (SSOC) dated December 1997, the RO increased the initial rating for CAD to 30 percent disabling effective July 6, 2004 and to 100 percent effective June 27, 2007. The Veteran continued his appeal. See March 2008 statements; see AB v. Brown, 6 Vet. App. 35, 38-39 (1993). At the outset, the Board notes that the Veteran's private medical records just prior to the inception of the appeal demonstrates LVEF's of 45 percent in August 2000, 44 percent in February 2001, and 45 percent in March 2002. The initial VA examination in April 2004 did not measure LVEF, but later LVEF's were shown to be between 53 percent and 61 percent. As the evidence does not provide any basis to reconcile the disparities, the Board will resolve favorable doubt in favor of the Veteran by holding that the medical evidence reasonably shows that his CAD resulted an LVEF of less than 50 percent prior at the inception of the appeal. As such, a 60 percent rating is granted effective to the date of claim. In the RO's assigning the 30 percent effective July 6, 2004, the RO noted a reference to a July 6, 2004 EKG test that showed some left ventricular hypertrophy. Further an August 2004 private stress test showed the Veteran developed some mild dyspnea during the test. The overall left ventricular ejection fraction (LVEF) was 61 percent. There had been no stress-induced ventricular enlargement, but left ventricular volume appeared borderline enlarged on baseline images. These test results were noted in the Veteran's April 2005 VA cardiac consultation. This consultation also observed the Veteran was at that time doing very well and in the month prior to the consult had had only one episode of chest pain. Another private treadmill test in May 2006 showed mild hypokinesis in the inferior distribution. There was no stress induced ventricular chamber enlargement and the ejection fraction was estimated to be 53 percent. During the June 27, 2007 VA cardiac examination, the examiner noted the Veteran had decreased his activity since his 2004 examination, in order to keep his angina episodes few in number. The Veteran also reported he had not had a heart attack since his bypass surgery in 2000. An EKG was performed and showed no change in comparison to the 2004 EKG; however the examiner noted that based on the reported decrease in activity alone, the METS of the Veteran was now 3. Further, there was no evidence of congestive heart failure. The examiner also noted the 2006 stress test had revealed a 53 percent ejection fraction. The examiner found the Veteran's CAD to be in a stable pattern of exertional angina for the previous 6 years. Following this June 2007 VA examination, the RO increased the Veteran's rating directly to 100 percent effective to the date of VA examination. For the entire appeal period, the Veteran has not established his entitlement to an initial rating greater than 30 percent based upon his LVEF's and negative history of congestive heart failure. Thus, the only basis for a rating in excess of 60 percent prior to June 27, 2007 is a determination of his METS workload. In April 2004, a VA examiner assessed the Veteran has having an activity level of 10 METS or less. This estimate was provided based upon the Veteran's activities such as playing golf and walking 18 holes six days a week, and riding a bike 20 minutes several times a week with walking on a treadmill for an additional 20 minutes. In June 2007, a VA examiner estimated the Veteran's activity level as 3 METS, based upon the Veteran's report of a reduced activity level since 2004. This estimate was provided based upon the Veteran's activities such as playing golf only two days per week; taking up to 3 hours to mow his lawn; taking up to 10 minutes to walk a city block; and no longer going to the gym. Overall, the Veteran described a reduction of his activity level due to the uncomfortable sensation of angina. Thus, the Board must carefully review the record to determine whether there is any lay or medical evidence of record which would support a determination that the Veteran's reduced activity level was first demonstrated prior to the June 27, 2007 VA examination report. In a VA Form 21-4138 received on April 28, 2005, the Veteran reported that his activity level had decreased, with him being unable to attend the gym, lift weights or use a treadmill due to angina. An April 2005 VA cardiology consultation included the Veteran's report of "doing very well" with only 1 episode of angina in the last month. He described a feeling of heart burn which occurred with emotional upset or "moderate/severe exertion," rapidly relieved with sublingual (SL) nitroglycerine (NTG) absent rest or prolonged symptoms. VA's Chief of Cardiology found the Veteran to have good LV function, rare to occasional cardiac symptoms, and having no need for further intervention at the time. On VA examination in July 2005, the Veteran described developing angina with exertion beyond normal walking. He walked approximately 5 miles per week, played golf, and bowled during winter months. He could not perform any rigorous exercises. VA clinical records in July 2005 also reflect the Veteran's report of doing well with no chest pain/pressure, or dyspnea on exertion (DOE). He did report occasional episodes of brief lightheadedness. In November 2005, he denied having any chest pain during a private stress test. In December 2005, he reported occasional chest pain relieved with one NTG. He was advised to decrease his diet, to increase his exercise, and was referred to cardiac physical therapy (PT). In April 2006, the Veteran reported during a VA clinical consultation that he stopped exercising at the gym. In May 2006, the Veteran underwent a cardiolite treadmill stress test due to complaint of exertional angina, the results of which are reported above. As reflected above, there is no direct medical evidence of record that the Veteran's activity level prior to June 27, 20075 was 5 METS or less which resulted in dyspnea, fatigue, angina, dizziness, or syncope. There is also no lay evidence of a significant decrease in the Veteran's activity level, or report of exertional angina, until the Veteran's April 29, 2005 statement which first reflects the Veteran's report of discontinuing gym workouts or exercising due to angina, which is part of the reduced activity level supporting the June 2007 VA examiner's assessment of the Veteran's activity level being 3 METS. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Based upon the Veteran's lay report of activity and cardiac symptomatology, the Board finds that the Veteran's entitlement to a 100 percent rating based upon his METs level has been established effective April 28, 2005, as this record reasonably shows that the Veteran had significantly decreased his activity level due to exertional angina. Accordingly, a 100 percent rating is granted effective April 28, 2005 based upon the Veteran's lay report of cardiac symptoms and limitations and the June 2007 VA examiner's estimation that such symptoms result in a METs of 3. However, the credible lay and medical evidence prior to April 28, 2005 does not show a significant decrease in the Veteran's activity level due to cardiac symptoms since the prior VA examination in April 2004. The Veteran's description of symptomatology has been deemed both competent and credible, but the Board finds no description of symptomatology which would warrant any further compensation for any time during the appeal period. The benefit of the doubt rule has been resolved in his favor. 38 U.S.C.A. § 5107. Initial rating - Hypertension Again by way of background, service connection was initially denied for the Veteran's hypertension. He submitted his notice of disagreement and in March 2005 service connection was granted at a 10 percent evaluation. He clarified in April 2006 that he considered the issue of the severity of his hypertension to still be on appeal. This April 2006 statement was accepted as the perfection of his appeal, per a handwritten note on the statement. The RO issued a June 2006 statement of the case for the hypertension claim, continuing the initial 10 percent rating, and another handwritten note recorded that no "F-9" had been received. The only medical evidence submitted for the any of the Veteran's claims after June 2006 was the June 2007 VA cardiac examination, which did record the Veteran's then current blood pressure readings. No supplemental statement of the case (SSOC) was issued pertaining to the hypertension claim. The Board considers the Veteran's hypertension claim to have been perfected and to be ready for review. A remand for the issuance of a SSOC is not warranted. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). Following his claim for high blood pressure, the Veteran was afforded a VA hypertension examination in April 2004. The examiner reviewed the Veteran's claim file extensively. At the examination his blood pressure was measured at 138/86, 127/85, and 133/88. The examiner made the diagnosis of hypertension and observed the Veteran had been on medication since 1998. The Veteran's blood pressure readings were noted during the April 2005 VA cardiac consultation. The reading that day was 118/84 and for comparison other 2005 readings were noted as follows: 128/84 (January) and 120/84 (earlier in April). During a July 2005 VA arteries and veins examination for another claim, readings of the Veteran's blood pressure were taken as follows: 150/92, 144/91, and 142/90. For the May 2006 private stress test the Veteran's blood pressure was recorded at 172/96. For the Veteran's June 2007 cardiac VA examination his blood pressure was recorded at 136/84, 130/86, and 135/82. There was no mention in any of the treatment records of home monitoring of his blood pressure. A review of the medical evidence, consisting of VA and non-VA treatment records, the April 2005 VA cardiac consultation, and VA examination reports of June 2004, July 2005, and June 2007, fails to show that the criteria for 20 percent rating has been met. None of this evidence shows that any of the diastolic readings were predominantly 110 or more, nor were any of the systolic readings predominantly 200 or more. It is apparent that the Veteran's hypertension is well controlled by his medication. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial disability rating of greater than 10 percent for service-connected hypertension. The Veteran has not alleged any blood pressure readings which would entitle him to the 20 percent rating. Thus, there is no lay or medical evidence on which to consider a higher rating for any time during the appeal period. The benefit of the doubt doctrine is not applicable. Consequently the Veteran's claim for an initial disability rating greater than 10 percent for hypertension must be denied. Legal Criteria - Earlier Effective Dates Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." When an application for disability compensation is received within one year of the date of the veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C.A. § 5110(b)(1). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). In this case, there is no dispute that the Veteran filed formal claims for service connection for hypertension and CAD on December 19, 2003. The RO has assigned the effective date of awards effective to this filing. The Veteran argues for an earlier effective date of award based on the manifestations of his symptoms or, alternatively, by the submission of an application for VA compensation benefits in January 1994. The Board has reviewed all correspondence, medical reports, and treatment records in the claims file. The Board finds that there is nothing to reflect a formal or informal claim of service connection for hypertension or CAD prior to December 19, 2003. Prior to December 19, 2003, the record is only significant for the Veteran's submission of a VA Form 21-526 for VA compensation or pension benefits in 1994. At that time, he attached his service treatment records (STRs) and identified the nature of sickness, disease or injuries being claimed as "See Attached SMR's." Notably, the Veteran did not augment his STRs by highlighting any particular disease or disability for which could be inferred the benefit being sought. By letter dated January 24, 1994, the RO reasonably sent a letter to the Veteran requesting him to identify "[t]he type of illness, disease, or injury for which you are claiming benefits." The RO notified him that, if his claim was not received in one year, VA would not be able to pay him for any period before the date of filing. The Veteran did not respond to the RO's request, and this claim must be deemed abandoned, and VA compensation benefits cannot be based upon that filing of a claim. 38 C.F.R. § 3.158. The Board cannot infer from the 1994 filing any specific benefit being sought by the Veteran, and VA is not required to conjure up what type of benefit he was seeking at that time. The Board acknowledges that the Veteran received treatment for his claimed disorders prior to December 19, 2003. The Court has acknowledged that the effective date based on an award of service connection is not based on the date of the earliest medical evidence demonstrating a casual connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. See Hazan v. Gober, 10 Vet. App. 511 (1997); Washington v. Gober, 10 Vet. App. 391 (1997), and Wright v. Gober, 10 Vet. App. 391 (1997). The Board is sympathetic to the Veteran's assertions; however, the governing law and regulations are clear and specific, and the Board is bound by them. 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.101(a). The Board further observes that the Veteran filed this earlier effective date of award claim in April 2008, which is beyond the one year time frame to appeal the effective date of award assigned in the original March 2005 rating. As such, this claim must also be denied on the basis of having no legal merit. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date as to a previous final decision is not authorized by law). The Court has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore this appeal is denied. Duty to Notify and Duty to Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2007); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in February 2004. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. Nevertheless, the record reflects that the Veteran was provided a meaningful opportunity to participate effectively in the processing of his claim such that any notice error did not affect the essential fairness of the adjudication now on appeal. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Veteran was notified that his initial claim was awarded with an effective date of December 19, 2003, the date of his claim, and a 10 percent rating was assigned to the hypertension disability and to the coronary artery disease disability. He was provided notice how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and criteria required for a higher rating and he demonstrated his actual knowledge of what was required to substantiate a higher rating in his argument included on his Substantive Appeal. Although he was not provided pre-adjudicatory notice that he would be assigned an effective date in accordance with the facts found as required by Dingess, he was assigned the date of the claim as an effective date of service connection, the earliest permitted by law. 38 U.S.C.A. § 5110(a). Moreover, the record shows that the appellant was sent an additional letter in October 2008 advising him of the criteria for establishing an initial rating and effective date of award. This letter advised the Veteran that his disability ratings were determined by a schedule for evaluating disabilities published at title 38 Code of Federal Regulations, Part 4. Evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment and daily life. Examples of evidence to be considered included information about on- going treatment records, including VA or other Federal treatment records, not previously identified; recent Social Security determinations; statements from employers as to job performance, lost time, or other information regarding how the condition affected his ability to work; or statements discussing his disability symptoms from people who have witnessed how they affected him. The letter also advised the Veteran how VA determines the effective date of award. VA has obtained STRs and Social Security Records, and assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the severity of disabilities. There are no outstanding requests to obtain any private medical records which the Veteran has both identified and authorized VA to obtain on his behalf. Accordingly, the Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. ORDER A 60 percent initial rating for CAD, status post bypass surgery associated with hypertension, is granted effective December 19, 2003. A 100 percent initial rating for CAD, status post bypass surgery associated with hypertension, is granted effective April 28, 2005. An initial rating greater than 10 percent for hypertension is denied. An effective date earlier than December 19, 2003 for the awards of service connection for hypertension and CAD is denied. REMAND Finally, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1), which provides criteria to consider whether to refer the Veteran's claim to the Director of Compensation and Pension Service for extra-schedular consideration under the provisions of 38 C.F.R. § 3.321(b). These provision state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The record includes a determination by the Social Security Administration that the Veteran became disabled from employment due to the service-connected CAD in 1999. In conjunction with the lay and medical evidence cited above, the Board finds sufficient evidence of record to suggest that the service-connected CAD and hypertension has markedly interfered with the Veteran's employability. As such, the Board finds that the requirements for an extraschedular evaluation have been met, and the matter is remanded for this purpose. Accordingly, the case is REMANDED for the following action: 1. The RO shall refer the Veteran's initial rating claims for hypertension and CAD to the Director of the Compensation and Pension Service for consideration of the claim on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1). 2. Thereafter, if the claims remain denied, the RO shall send the Veteran and his representative a supplemental statement of the case discussing the relevant laws and regulations, as well as the reasons for any subsequent denial. The case should thereafter be returned to the board for further review, as appropriate. By this remand, the Board does not intimate any particular outcome as to the merits of the case. The case is being remanded for necessary additional development. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ T. Mainelli Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs