Citation Nr: 1106331 Decision Date: 02/16/11 Archive Date: 02/28/11 DOCKET NO. 07-13 254A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a cardiac disability, to include ischemic heart disease, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to higher initial ratings for PTSD, rated 30 percent disabling from September 15, 2005 to June 14, 2006, 50 percent disabling from June 15, 2006 to November 25, 2007, 100 percent disabling from November 26, 2007 to December 31, 2007, and 70 percent disabling since January 1, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969, including service in the Republic of Vietnam. He received the Purple Heart Medal and Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) from August 2006 and January 2007 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Detroit, Michigan. In the August 2006 decision, the RO granted service connection for PTSD and assigned an initial disability rating of 10 percent, effective September 15, 2005. In the January 2007 decision, the RO denied entitlement to service connection for hypertensive heart disease, status post myocardial infarction. In October 2007, the RO assigned a higher initial 30 percent disability rating, from September 15, 2005 to June 14, 2006, and a higher initial 50 percent disability rating, from June 15, 2006, for PTSD. In February 2008, the RO assigned a temporary initial 100 percent disability rating, from November 26, 2007 to December 31, 2007, and an initial 50 percent rating from January 1, 2008, for PTSD. In March 2008, the Veteran requested a local hearing before a Decision Review Officer (DRO) at the RO. In July 2008, an informal hearing conference with a DRO was conducted with the Veteran's representative. In July 2008, the Veteran withdrew his formal DRO hearing request. In October 2008, the RO granted a higher initial 70 percent disability rating for PTSD, effective January 1, 2008. In his February 2007 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing) with regard to his claim for higher initial ratings for PTSD. As the Veteran has withdrawn his appeal for higher initial ratings for PTSD, his hearing request is also deemed to be withdrawn. The Veteran was granted an initial 100 percent rating for PTSD from November 26, 2007 to December 31, 2007. As the Veteran was granted the full benefit he sought during this period, his claim for higher initial ratings for PTSD during this period is not at issue. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issues of entitlement to service connection for hypertension, entitlement to increased ratings for bilateral hearing loss and a shell fragment wound to the right leg with limited function of the right knee, and entitlement to special monthly compensation have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In July 2008, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal as to the issue of entitlement to higher initial ratings for PTSD. 2. The Veteran served in Vietnam during the Vietnam War era. 3. The Veteran has been diagnosed as having ischemic heart disease, which is present to a compensable degree. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran, as to the issue of entitlement to higher initial ratings for PTSD, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2010). 2. The criteria for service connection for a cardiac disability, namely ischemic heart disease, are met. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 4.104, Diagnostic Codes (DCs) 7005, 7006, 7017 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS PTSD Initial Rating The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran submitted a July 2008 written statement (VA Form 21-4138) in which he stated that he was satisfied with the results of the July 2008 informal hearing conference, wherein it was agreed that a higher initial 70 percent rating for PTSD was warranted pending a VA examination. Therefore, he cancelled his request for a formal DRO hearing, but wished to continue his appeal for service connection for a cardiac disability. In an October 2008 rating decision, the RO granted a higher initial 70 percent rating for PTSD, effective January 1, 2008. A veteran is presumed to be seeking the maximum rating permitted by law, but may limit his appeal to a lesser benefit. AB v. Brown, 6 Vet. App. 35, 39 (1993); Hamilton v. Brown, 4 Vet. App. 528, 544 (1993). As the Veteran expressed satisfaction with an initial 70 percent rating for PTSD and the full benefit sought on appeal was granted in the October 2008 rating decision, the Veteran has withdrawn the appeal as to the initial rating issue and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As the Board is granting the claim for service connection for a cardiac disability, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Effective August 31, 2010, VA amended the regulatory provisions governing service connection on a presumptive basis due to exposure to herbicides. Specifically, the final rule amends 38 C.F.R. § 3.309(e) by adding, among other disabilities, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). See 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's medical records reveal that he has been diagnosed as having ischemic heart disease, to include coronary artery disease. His medical records further indicate that he has a history of a myocardial infarction, underwent coronary artery bypass surgery, and has experienced numerous cardiac symptoms over the years (e.g. angina, dizziness, sweating), and has a long history of medication use for his cardiac disabilities. Thus, the Veteran's ischemic heart disease has clearly become manifest to a degree of 10 percent or more since service. See 38 C.F.R. § 4.104, DCs 7005, 7006, 7017. As the Veteran served in Vietnam he is presumed to have been exposed to herbicides, including Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. He has been diagnosed as having ischemic heart disease, which manifests to a degree of 10 percent or more and he was exposed to herbicides in Vietnam. Service connection for a cardiac disability, diagnosed as ischemic heart disease, is granted on a presumptive basis. 38 U.S.C.A. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). ORDER Entitlement to service connection for a cardiac disability, namely ischemic heart disease, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs