Citation Nr: 1302807 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-42 262A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an effective date prior to October 26, 2010, for the grant of service connection for coronary artery disease (CAD). 2. Entitlement to an initial rating in excess of 10 percent for CAD prior to August 4, 2011. 3. Entitlement to service connection for a prostate disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from August 1967 to August 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2008 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Illinois. The November 2008 decision denied the Veteran's claims for service connection for prostate and skin disorders and hypertension to which he submitted a timely notice of disagreement. However, in an October 2009 rating decision, the RO granted service connection for hypertension, and for onychomycosis and eczema as part of his service-connected diabetes mellitus disability. The RO's action represents a full grant of the benefits sought as the Veteran's claims for service connection for a skin disorder and hypertension. He perfected an appeal as to his claim for service connection for a prostate disorder. The Veteran also perfected an appeal as to an August 2009 rating decision that denied his request to reopen a previously denied claim for service connection for a low back disorder. However, in a July 2010 rating decision, the RO granted service connection for degenerative joint disease at T11 and T12 and a mild old compression fracture of T11 (claimed as a low back disorder). The RO's action represents a full grant of the benefits sought as to the Veteran's claim for service connection for a low back disorder. Then, effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add ischemic heart disease, to include coronary artery disease, to the list of diseases associated with exposure to certain herbicide agents. The intended effect of this amendment was to establish presumptive service connection for these diseases based on herbicide exposure. 75 Fed. Reg. 53,202 (Aug. 31, 2010); see 38 C.F.R. § 3.816 (2012); Nehmer v. Veterans Administration of the Gov't of the United States, 284 F. 3d 1158 (9th Cir. 2002). In the September 2011 rating decision, the RO reconsidered the previously denied claim for service connection for a heart disorder and granted service connection for coronary artery disease, effective from October 26, 2010, evaluated as 10 percent disabling from October 26, 2010 and as 100 percent disabling from August 4, 2011. The Veteran perfected an appeal as to the effective date assigned for service connection and the initial rating in excess of 10 percent prior to August 4, 2011 for coronary artery disease. In November 2012, the Veteran testified during a videoconference hearing before the undersigned. A transcript is of record. The issues of an effective date earlier than October 26, 2010, for the grant of service connection for CAD and service connection for a prostate disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Since the current effective date of service connection the Veteran's CAD has been manifested by an estimated metabolic equivalent (METs) level of 1 to 3 and was productive of fatigue, angina, dizziness, syncope. CONCLUSION OF LAW An initial evaluation of 100 percent for CAD has been warranted since October 26, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (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. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 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"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that 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). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating the aspects of his claim reached in this decision. Should the Veteran establish entitlement to an earlier effective date for the grant of service connection, the Board will consider entitlement to a 100 percent rating during that additional period. II. Factual Background and Legal Analysis Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 38 C.F.R. § 3.321 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. 38 C.F.R. § 3.321(b)(1) (2012). 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). Under Diagnostic Code 7005, a 10 percent disability evaluation is assigned when a workload of greater than 7 METs, but not greater than 10 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication is required. 38 C.F.R. § 4.104, Diagnostic Code 7005. A 30 percent rating is warranted when a workload of greater than 5 METs, but not greater than 7 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. Id. A 60 percent disability evaluation is warranted when there is more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs, but not greater than 5 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted when there is chronic congestive heart failure; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. If nonservice-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, a medical opinion should be requested as to which condition is causing the current signs and symptoms. Note to Diagnostic Code 7005. The 100 percent rating assigned effective August 4, 2011 was based on the findings on a VA examination conducted on that showing estimated METs of 1 to 3 with dyspnea, fatigue, angina, syncope, and dizziness. See September 2011 rating decision. Review of the August 2011 VA examination report reveals that the METs reported were based on an estimated value of 1 to 3 with no stress test conducted. VA medical records include a September 2009 VA examination report that shows that results of an electrocardiogram (EKG) performed at the time revealed Non-specific intraventricular conduction defect and a normal chest x-ray ray. Diagnoses included hypertension aggravated by diabetes mellitus. Results of an echocardiogram performed by VA in January 2010 showed moderate concentric left ventricular hypertrophy with essentially normal left ventricular wall motion global systolic function. The ejection fraction was estimated at 55 percent. On October 26, 2010, the Veteran underwent a myocardial perfusion imaging stress test that revealed findings suggestive of ongoing ischemia and also showed an old myocardial infarction (see September 2011 VA medical report). Left ventricular ejection fraction was 72 percent. Private hospital records, dated in November 2010, show that the Veteran underwent left heart catherization, an angiogram, and coronary stent placement. The August 4, 2011 VA examination report reflects the examiner's review of the Veteran's medical records. She noted that his CAD was diagnosed in January 2010 and a myocardial infarction of undetermined age based on testing was noted on October 26, 2010, when angina pectoris was also diagnosed. The examiner said that the Veteran did not have congestive heart failure or cardiac hypertrophy. As to his cardiac functional assessment, the VA examiner said the Veteran's lowest level of activity at which he reported symtoms of dyspnea, fatigue, angina, dizziness, and syncope was 1 to 3 METs based on his responses. The VA examiner reported that, in the past year, heart problems with stent placement caused the Veteran to miss work. His heart problem caused more difficulty with shortness of breath and dizziness. He was still working but drove to various locations to do maintenance work for rural post offices. She said it was not uncommon for him to experience symtoms of chest discomfort, shortness of breath, and dizziness while working. He missed a lot of work due to medical problems but was trying to keep his job due to financial concerns. The Veteran's wife was at the interview and said he occasionally had to go home to rest on assignments or pull over and rest while working on the road. He reported lots of trouble with shortness of breath while working. The Veteran kept nitroglycerin in his pocket to help with chest pain at work. The VA examiner said that the Veteran could not do an exercise stress test (ETT) because he simply could not walk even a half block at a slow pace without getting shortness of breath, dizzy, chest "discomfort" (the way he described his angina), or a feeling like he was going to "pass out". Further, the VA examiner indicated that the Veteran said that, after his November 2010 stent placement, he could not tell much difference in his current heart symtoms from those he had before the stent was placed. A September 2011 VA medical opinion indicates that a physician reviewed the Veteran's medical records. He said the October 2010 stress test showed an old myocardial infarction based on the fixed defect found on the stress imaging study. The Veteran also had ischemia based on the variable defect found in that study. The VA examiner noted that the Veteran's medical records showed that he had diabetes that can lead to a "silent" myocardial infarction and there was no indication in the records as to when it may have occurred. Therefore, the earliest documented finding of ischemic heart disease was October 26, 2010. The VA examiner further noted that there was reference to CAD possibly starting at the time of a cardiac echo performed in January 2010. However, a review of that report revealed no indication of the presence of CAD on report or the medical records on or about the time of this report. The August 4, 2011, examination report and the Veteran's testimony indicate that his symptoms on the date of examination were approximately the same as they had been on October 26, 2010. There is nothing in the August 4, 2011 report to suggest that the examiner's estimate of 1 to 3 METs was limited to the day of examination or inapplicable to the Veteran's disability level prior to the examination date. This is particularly so in light of the Veteran's account of the impact of his heart disability on his ability to work "in the past year". The evidence shows that the Veteran developed CAD, as first documented on October 26, 2010, and the August 2011 VA examiner provided an estimated METs level of 1 to 3 METs. Thus, resolving all reasonable doubt in the Veteran's favor, the Board concludes the severity of the disability at issue is more appropriately reflected by a 100 percent evaluation prior to August 4, 2011. The benefit of the doubt is resolved in the Veteran's favor to this extent. See 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. Accordingly a 100 percent rating is granted effective October 26, 2011. As alluded to earlier, this decision is not meant to foreclose a 100 percent rating prior to that date, if entitlement to an earlier effective date is eventually established. ORDER An initial 100 percent rating for coronary artery disease is granted, effective October 26, 2010. REMAND During his November 2012 Board hearing, the Veteran testified that, in February 2012, he applied for Social Security Administration (SSA) disability benefits based on his heart disability. See Board hearing transcript at page 11. He said that, in February and June 2012, he underwent medical examinations in conjunction with his SSA disability application, and it was coincidental that his application was approved in August 2012, when he became 62 years old and eligible to receive SSA age-related benefits. Id. To date, however, a complete copy of the Veteran's SSA records has not been associated with the claims file. In this regard, the Board notes that the possibility that SSA records could contain evidence relevant to the claims on appeal cannot be foreclosed absent a review of those records. As such, the records considered by the SSA in its award of disability benefits must be obtained prior to consideration of the Veteran's remaining appeals, including entitlement to an earlier effective date for service connection. 38 C.F.R. § 3.159(c)(2) (2012); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran also seeks service connection for a prostate disorder variously claimed as prostatitis flare-ups and incontinence. Service medical records are not referable to complaints or diagnosis of, or treatment for, erectile dysfunction, incontinence, or a prostate disorder. A January 2003 VA medical record shows that the Veteran was seen to establish VA care and gave a history of having benign prostatic hypertrophy (BPH). He denied a urinary examination at that time. April 2009 VA medical records include the Veteran's complaints of BPH with "BOO". In August 2009, a VA examiner associated the Veteran's erectile dysfunction with diabetes mellitus and his complaints of urine leakage with prostate enlargement and outflow obstruction. During his November 2012 Board hearing, the Veteran testified that, in approximately 1976, he had erectile dysfunction problems while at Holloman Air Force Base in New Mexico, where his Army unit was assigned. See Board hearing transcript at page 6. He said a physician conducted a prostate examination and diagnosed an enlarged prostate that resulted in chronic incontinence. Id. at 2 and 6. There has not been a specific attempt to obtain records of this treatment. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran's testimony provides evidence of a continuity of prostate related symptomatology beginning in service. At an examination for VA in August 2009, the Veteran's prostate was found to be enlarged. An examination is needed to determine whether the Veteran's current prostate disease is related to service. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the approximate two month period, or season (and year if other than 1976), during which he was treated for prostate problems while at Holloman Air Force Base. 2. Then, contact the National Personnel Records Center, the Departments of the Army and Air Force, and any other appropriate federal agency, and request all service treatment records regarding the Veteran's treatment for erectile and prostate problems at Holloman Air Force Base in New Mexico, during the two month period or season in 1976 (or other year) identified by him. If the records are unavailable, a memorandum detailing all efforts to obtain them should be placed in the claims file and the Veteran and his representative so notified in writing. 3. Contact the SSA and request a copy of the administrative decision and all records considered in conjunction with its 2012 award of SSA disability benefits to the Veteran and any subsequent disability determinations regarding him. 4. After obtaining all available service treatment and SSA records, afford the Veteran an examination to determine whether his current enlarged prostate, or other prostate disease is related to service, including the symptoms reported by the Veteran as having begun in service and continuing since (i.e. incontinence). The examiner should provide reasons for the answer to this question that takes into account the Veteran's reports of symptoms (including incontinence) beginning in service and continuing since). The examiner should review the claims folder and note such review in the examination report. 5. If any benefit sought on appeal remain denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board as appropriate. 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. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs