Citation Nr: 1124265 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 08-16 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for heart disability manifested by atrial fibrillation. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to May 1966. Additionally he had periods of reserve duty from June 1976 to April 1997. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran provided testimony at a March 2011 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran meets the schedular criteria for a TDIU for the full pendency of his claim and became unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities on June 11, 2006. 2. There is no lay or medical evidence to indicate that the Veteran experienced symptoms of or was diagnosed with heart disability manifested by atrial fibrillation during any period of active service, active duty for training, or inactive duty training, or that current heart disability is related to any incident of service. CONCLUSIONS OF LAW 1. The criteria for a TDIU, effective from June 11, 2006, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.15, 4.16 (2010). 2. The criteria for service connection for heart disability manifested by atrial fibrillation are not met. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will find that the Veteran has met the schedular criteria for a TDIU for the full pendency of his claim and became unable to secure or follow a substantially gainful occupation due to service-connected disabilities beginning on June 11, 2006. The Board will therefore grant entitlement to a TDIU effective from June 11, 2006. Also, the Board will find that there is no lay or medical evidence that the Veteran experienced heart disability manifested by atrial fibrillation during any period of active duty, active duty for training, or inactive duty training, or that current heart disability is related to any incident of service. Accordingly, entitlement to service connection for heart disability manifested by atrial fibrillation will be denied. The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 30 (1998). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). VCAA letters dated in September 2006 and October 2006 explained the evidence necessary to substantiate the claims for a TDIU and service connection for heart disability. These letters also informed him of his and VA's respective duties for obtaining evidence. See 38 C.F.R. § 3.159(b). The letters explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letters were issued prior to initial adjudication of the claims in August 2007. See Dingess/Hartman. In adjudication of the claims the RO has assisted the Veteran by obtaining relevant medical evidence including service treatment records, VA records of treatment, private records of treatment, employment-related medical records, and records of the Social Security Administration (SSA). See 38 U.S.C.A. § 5103A(a)-(c). The Veteran has not contended and there is no evidence to show that he experienced heart disability manifested by atrial fibrillation within one year of a period of service of greater than 90 days, or as a result of a disease or injury incurred during active duty training, or as a result of an injury sustained during inactive duty training. Rather, the Veteran has asserted that he abruptly began to experience symptoms of atrial fibrillation after his retirement from reserve duty. See March 2011 Board hearing transcript, pages 5-7. As there is no lay or medical evidence of heart disease or injury during a period of service and there is no evidence to indicate that the Veteran's heart disability may be associated with his service, a VA examination and opinion is not required with respect to the claim for service connection for heart disability. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With respect to the Veteran's claim for a TDIU, the Board will find that the Veteran's lay assertions, the determination of total disability by the Social Security Administration and the medical evidence it considered, and results of VA neurological and orthopedic examinations in September 2006 place the evidence in approximate balance so as to find that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. Consequently, the evidence is sufficient to grant the claim for a TDIU and no further evidence or development is needed. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate each claim has been obtained. There is no indication in the claims file that there are additional available relevant records that are required for adjudication of the claims on appeal. Merits of the Claim I. Service Connection for Heart Disability Manifested by Atrial Fibrillations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection may be granted for disability resulting from disease or injury incurred or aggravated in active duty for training, or for disability resulting from injury incurred in inactive duty training. 38 U.S.C.A. §§ 101(24), 1110, 1131. When a disability is thus incurred, the period of service is considered active military, naval, or air service. 38 U.S.C.A. § 101(24). Generally, to substantiate a claim for service connection for disease, such as heart disease, as incurred or aggravated during a period of active duty for training, there must be evidence that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. See 38 U.S.C. §§ 101(2), (22), (24), 1110; Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of such evidence, the period of active duty for training would not qualify as "active military, naval, or air service," and the claimant would not achieve veteran status. Acciola v. Peake, 22 Vet. App. 320 (2008) (noting that presumption of sound condition did not apply when claim for service connection based only on period of ACDUTRA and there was no evidence that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training; in the absence of such evidence, the period of active duty for training would not qualify as "active military, naval, or air service," and the claimant would not achieve veteran status). Additionally, 38 U.S.C.A. § 101(24) includes within the definition of "active duty" periods of inactive duty training during which individuals become disabled or die from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. See also 38 C.F.R. § 3.6(a). There is no contention or evidence that the Veteran experienced a myocardial infarction, a cardiac arrest, or a cerebrovascular accident during a period of reserve service. Thus, in this case service connection is not warranted for the incurrence of such injuries to the heart during a period of reserve duty. Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic disabilities, to include arteriosclerosis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from a period of service of 90 days or more. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In the present case, there is no diagnosis or other indication of arteriosclerosis within one year of discharge from a period of active service of 90 days or more. Accordingly, a presumption of service connection for arteriosclerosis is not warranted pursuant to the provisions of 38 C.F.R. §§ 3.307 and 3.309(a). Service treatment records of active and reserve duty from March 1964 through the end of the Veteran's period of reserve service contain no complaints of irregular heart beat or other heart symptoms, and no diagnosis of atrial fibrillation or any heart-related disability. A December 1994 service department cardiovascular screening reflects that an EMG was normal and that his risk index was 3.5%, below the screening requirement of 7.5 percent. This is was the latest cardiovascular evaluation in the extensive records of service treatment and examination. Cardiovascular screenings in April 1989 and October 1990 reflect negative and normal findings and risk factors of 1.96 percent and 1.37 percent, respectively. The most recent document in the service treatment records was a September 1996 certificate of disability from the Veteran's employer, by reason of knee disability and recent knee surgery. There is no lay or medical evidence of record of the Veteran experiencing heart disability during a period of active duty for training, inactive duty training, or active military service. At his March 2011 Board hearing, the Veteran indicated that he retired from reserve duty (generally consisting of periodic two-week or weekend periods of reserve service) in April of 1997 and began to experience and be treated for atrial fibrillation in February 1998. The Veteran testified at his March 2011 Board hearing (transcript at page 5) that the condition started "right out of the blue" and that his doctors do not know what caused the condition. By contrast, private medical evidence shows that the Veteran was first seen by K.F., MD, for atrial fibrillation in March 1998, but that the Veteran had experienced symptoms of atrial fibrillation "for about a year" and that he had received medication beginning about eight months prior. After further work-up in April 1998 Dr. K.F. opined that the Veteran did not have any underlying heart disease. There is an inconsistency in the record insofar as the Veteran asserts that his atrial fibrillation began in February 1998, while the medical history provided to K.F., M.D., indicates that the disability would have had its onset in 1997 and that treatment would have begun in mid-1997. However, although his recollection as to dates may not be precise, the Veteran clearly asserts that his atrial fibrillation did not begin until an abrupt onset after his discharge from military reserve service. The Board finds this recollection of the Veteran credible, as it pertains to the relative placement in time of two significant and memorable events in his life (retirement from reserve duty and first episode of atrial fibrillation). Further, at his Board hearing the Veteran could identify no possible avenue or evidence by which his current heart disability might be linked to service, whether as due to, for example, parachute jumps or medications for service-connected disability, as suggested by the undersigned in attempting to identify avenues by which VA might seek to assist him in substantiating his claim. See March 2011 Board hearing transcript, page 5. The evidence shows without contradiction that the Veteran did not experience heart disability during active service, and there is no contention or indication by lay or medical evidence that he experienced symptoms of heart disability during a period of inactive duty training or active duty for training, or as a result of a disease or injury incurred during any period of service. As such, the preponderance of the evidence is against the claim, and the criteria for service connection for heart disability manifested by atrial fibrillation are not met or approximated. See 38 U.S.C.A. §§ 101(24) 1110, 11131, 5107; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As the preponderance of the evidence is against the claim for service connection for heart disability manifested by atrial fibrillation, the benefit of the doubt doctrine is not for application in the instant case. See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. TDIU A TDIU is warranted where the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total and when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the rating to 70 percent or more. 38 C.F.R. § 4.16. The Veteran's claim for a TDIU was received on August 23, 2006. The Veteran has met the schedular criteria for a TDIU for the full period of the pendency of his TDIU claim. His combined ratings for disability of the orthopedic system exceed 40 percent as a result thoracolumbar degenerative joint disease, rated as 20 percent disabling; cervical spine degenerative joint disease, rated as 20 percent disabling; left shoulder degenerative joint disease, rated as 10 percent disabling; left knee postoperative patellar release, rated as 10 percent disabling; residuals of left elbow injury, rated as 10 percent disabling; and right knee degenerative joint disease, rated as 10 percent disabling. See 38 C.F.R. § 4.16(a)(3) (combined rating for disabilities affecting one body system such as orthopedic system are to be considered a single disability for TDIU purposes). Further, his combined rating is 70 percent or more for the full period after taking into consideration neurological impairment of the left upper extremity, rated as 20 percent disabling. See 38 C.F.R. § (4.16)(a); 4.25 (combined ratings). The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided, that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the veteran resides. Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, 1 Vet. App. at 358. The question in a total rating case based upon individual unemployability due to service-connected disability is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Id. (citing 38 C.F.R. §§ 4.1, 4.15). A TDIU requires that the veteran's service-connected disabilities are sufficient to produce unemployability without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The evidence is in equipoise as to whether the Veteran is unemployable due to service-connected disabilities. The records of the SSA are significant evidence that the Veteran is unable to secure or follow substantially gainful employment due to his orthopedic disabilities; however, these disabilities include nonservice-connected disability of his right (major) upper extremity, as well as service-connected disability of the knees and cervical and lumbar spine. Further, SSA took into account the Veteran's advancing age (which VA regulations prohibit in adjudication of a claim for a VA TDIU) in finding him fully disabled notwithstanding that he may be capable of sedentary employment. SSA documentation further reflects, though, that medical evidence showed that the Veteran would need a sit-stand option every 30 minutes as a consequence of his knee and back disabilities even to perform sedentary work. This is highly consistent with the Veteran's Board hearing testimony in March 2011 that he had to cease sedentary employment at a customer service position where he was required to sit for periods of hours, because such extended sitting caused him too much pain. This aspect of the Veteran's disability, which renders him less than fully suited for the full range of sedentary employment, is attributable to service-connected cervical and lumbar spine and right and left knee disabilities. Generally consistent with the SSA findings were VA examination findings by VA neurological and orthopedic examiners in August 2006 that the Veteran was unable to perform manual labor occupations as a result of his service-connected disabilities but was capable of sedentary employment. However, the Board finds that the Veteran's March 2011 Board hearing testimony and the findings of the SSA that the Veteran requires a sit-stand option every one-half hour are highly probative evidence of a substantial restriction on even sedentary employment that is solely attributable to service-connected disabilities. Accordingly, after affording all reasonable doubt in favor of the Veteran, the Board finds that the employability criteria for a TDIU are approximated. Because both the schedular and employability criteria for a TDIU are met or approximated for the full pendency of the Veteran's claim, a TDIU is warranted. See 38 C.F.R. § 4.16. The Board notes that the SSA found after reviewing the Veteran's employment history that he had not engaged in substantially gainful activity since June 11, 2006, The Veteran had alleged to SSA, and that agency found that he became fully disabled on June 11, 2006. This is generally consistent with the Veteran's testimony at his March 2011 Board hearing. To the extent the Veteran has at times claimed to have become unemployable at a time prior to June 11, 2006, the Board finds the review of the Veteran's employment history by SSA and the Veteran's contentions before SSA that he became unemployable on June 11, 2006, as substantially more credible and more probative, for the reason that these assertions were made by the Veteran to and verified by an agency that he likely knew would investigate the date of onset of total disability and would have unrestricted access to extensive employment and earnings information. An effective date for a TDIU of June 11, 2006, which is the date the Veteran became unemployable by reason of service-connected disability and is within one year prior to the claim for increase received in August 2006, is therefore for assignment. See 38 C.F.R. § 3.400. ORDER A TDIU is granted, effective from June 11, 2006. Service connection for heart disability manifested by atrial fibrillation is denied. ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs