Citation Nr: 1303394	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  09-21 033	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for atrial fibrillation.    

2.  Whether new and material evidence has been received to reopen a claim of service connection for chronic strain, right and left inner thighs, to include as secondary to service-connected mechanical low back pain. 

3.  Entitlement to service connection for a heart disorder, to include hypertension, coronary artery disease, and acute myocardial infarction.

4.  Entitlement to service connection for a traumatic brain injury (TBI).

5.  Entitlement to a disability rating in excess of 40 percent for mechanical low back pain.

6.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1983 to September 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
 
The issues on appeal have been recharacterized to comport with the evidence.  

Service connection for chronic strain of the right and left inner thighs, to include as secondary to service-connected mechanical low back pain, was denied by the RO in an unappealed March 2006 rating decision.  In February 2008, the Veteran submitted a claim for service connection for bilateral leg damage with left leg shortening and right leg bowing.  The RO accepted this submission as an application to reopen a previously denied claim for chronic strain of the right and left inner thighs and declined to reopen the claim.  The Board, however, notes that the finding of a left leg length discrepancy represents a new diagnosis and, therefore, new and material evidence is not necessary to consider this particular claim.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (where a prior claim for service connection has been denied, and a current claim contains a different diagnosis (even one producing the same symptoms in the same anatomic system).  

The Board notes further that the RO has not adjudicated entitlement to service connection for bilateral leg damage, claimed as a left leg shortening and right leg bowing, on the merits, in the first instance.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.

Also, the record reflects diagnoses for various heart disabilities.  Thus, the claim for service connection for hypertension has been broadened to include other heart disorders, and is recharacterized accordingly.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 

The issues of whether new and material evidence has been submitted to reopen a claim of service connection for chronic strain of the right and left inner thighs; entitlement to service connection for a heart disorder and for a TBI; entitlement to a disability rating in excess of 40 percent for mechanical low back pain, and entitlement to TDIU 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

The Veteran's atrial fibrillation manifested with fewer than four episodes per year.  


CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for atrial fibrillation have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.104, DC 7010 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the veteran's service and the disability, 4) degree of disability, and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).    

There has been compliance with the duty to notify.  The Veteran was informed of the information and evidence necessary to substantiate the claims on appeal by a letter sent to him in December 2008 prior to the initial unfavorable decision.  This letter also advised him of the types of evidence VA would assist in obtaining, as well as his responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  This letter included notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to Dingess.  Additional notice was provided in a June 2009 letter, and the claim was thereafter readjudicated by way of a supplemental statement of the case (SSOC) issued in September 2012.

There has been compliance with the duty to assist.  The evidence in this case includes service treatment records, VA and private treatment records, and lay statements.  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf, other than those that he identified and the RO sought to obtain.

The Veteran was afforded VA examinations in March 2009, November 2009 and August 2011.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination report sets forth detailed examination findings.  Therefore, the examination reports are adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Veteran has not reported that the condition has worsened since the last examination, and thus further examination is not necessary regarding the issue on appeal.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).

The appeal was remanded for further development in May 2011.  The RO was directed to obtain any additional treatment records from September 2010 to the present; obtain Social Security Administration (SSA) records; and provide the Veteran with a VA examination of his back disability.  The Veteran did not identify any additional treatment during that period and the SSA indicated that they have no records on file for the Veteran.  A VA examination was provided in August 2011.  A review of the record indicates that the Board's directives were substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  To the extent that there was any non-compliance, this is addressed in the Remand.

Analysis
The Veteran seeks a higher rating for his service-connected atrial fibrillation.

Disability evaluations 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.

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).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet.App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The Veteran's atrial fibrillation is rated under DC 7010 for supraventricular arrhythmias.  Under that regulation, permanent atrial fibrillation (lone atrial fibrillation) or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor warrants a 10 percent disability rating.  Paroxysmal atrial fibrillation or other supraventricular tachycardia with more than four episodes per year documented by ECG or Holter monitor warrants a 30 percent disability rating.  38 C.F.R. § 4.104.

An October 2008 private treatment record shows that the Veteran experienced an episode of paroxysmal atrial fibrillation in October 2008, as well as a myocardial infarction.  His physician noted that he had experienced three prior episodes of atrial fibrillation with the last one being two years ago.  The remaining records show no more than occasional episodes of atrial fibrillation.  Specifically, private treatment records reveal that the Veteran experienced two episodes of atrial fibrillation in April 2009, one episode in September 2010, and one episode in November 2010.  These episodes were all confirmed by ECG.  At a March 2009 VA examination, the Veteran's stress test revealed a normal sinus rhythm.  At a VA examination in November 2009, his heart rhythm was regular, and he was noted to be doing well on medication.  On the VA examination in August 2011, his heart rhythm was normal.  The examiner determined that the Veteran's service-connected disability of atrial fibrillation is stable and controlled with medication, although there are intermittent events due to stress.  

A review of all the evidence demonstrates that the Veteran has not experienced more than four episodes of atrial fibrillation in a one-year period at any time during the appeal.  Therefore, the Board finds that a disability rating in excess of 10 percent is not warranted for atrial fibrillation.    

The Board has considered whether the Veteran is entitled to an extraschedular evaluation.  38 C.F.R. § 3.321.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The schedular ratings in this case are adequate.  The primary symptoms of this disability are intermittent episodes of atrial fibrillation per year that total less than four a year; which is addressed in the rating criteria.  Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorder, but the medical evidence reflects that those symptoms are not present.  Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required.


ORDER

A disability rating in excess of 10 percent for atrial fibrillation is denied.


REMAND

Unfortunately, this appeal must be remanded for additional development, even though such action will, regrettably, further delay a decision.

New and Material Evidence Claim

The Veteran seeks to reopen a claim for service connection for chronic strain of the left and right inner thighs.  Additional efforts are needed to comply with VA's duty to notify under the VCAA, as the February 2008 notice letter was deficient in this regard.  Specifically, the Veteran must be provided with adequate notice under the guidance of the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), which addresses the requirements for new and material evidence.  Such notice must include the basis for the previous denial in the March 2006 rating decision, and the elements required to establish service connection that were found insufficient in that decision.  See Id.  

Heart Disorder

The Veteran seeks service connection for a heart disorder, to include hypertension, coronary artery disease, and acute myocardial infarction.  He was provided with a VA examination in March 2009.  A VA examiner opined that the hypertension was not due to military service or service-connected atrial fibrillation, but was most likely due to tobacco and alcohol use, obesity, age, and family history.  This opinion is inadequate as it is not supported by a clinical rationale.  When VA undertakes the effort to provide an examination, it must provide an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  

In addition, in the Veteran's June 2009 Notice of Disagreement, he raised the argument that there is a correlation between his acute myocardial infarction and his hypercholesteremia that was noted, but untreated, in service.  He also has asserted that his hypertension may be due to high cholesterol that was noted in service.  Significantly, in an October 2008 private treatment record a physician noted that the Veteran's hypertension is likely related, at least in part, to the stress of his acute infarction.  There also is evidence of elevated blood pressure readings in service.  In light of the state of the record, and the contentions which have not been addressed, a new examination and opinion supported by a fully-reasoned rationale, is necessary.

TBI

Service treatment records show that the Veteran fell and hit his head in March 1994.  He received treatment for a laceration to his head, including four sutures.  There is no record of a loss of consciousness or other sequelae at the time of injury.  

In April 2007, the Veteran presented for VA treatment with complaints of balance problems, dizziness, headaches and sensitivity to bright lights.  He reported a history of a fall in service with a head injury.  A TBI screen was positive and he was referred for a TBI consultation.  At a May 2007 VA TBI consultation, it was noted that the Veteran met the criteria for a minor TBI with no significant sequelae.  However, notes from a subsequent consultation with a VA physician indicate uncertainty as to whether there was any actual sequela.  The Veteran was afforded a VA examination in July 2008.  The examiner indicated that he could not determine whether the Veteran's current symptoms are due to his in-service trauma, post-service trauma, or from any other cause, without resorting to speculation.  

Based on the current record, it is clear that the Veteran suffered a head injury in service.  It is unclear however, which, if any, of the current subjective and/or clinical findings, are etiologically related to that injury.  The May 2007 findings appear to be inconclusive and do not provide sufficient detail so that the Board's evaluation is an informed determination.  The July 2008 VA examiner's opinion is also inadequate for rating purposes as it is based on speculation.  Thus, the Board finds that a new VA TBI examination must be scheduled to determine whether the Veteran has any residual impairment from the head injury in service.  

Mechanical Low Back Pain

In a May 2011 decision, the Board directed the RO to obtain a new examination and clarifying opinion as to whether any other currently diagnosed lumbar spine disorder, including degenerative disc disease, may be considered to have had onset in service and/or to be related to the service-connected mechanical low back pain.

The Veteran was afforded a VA examination in August 2011.  The examiner noted radiographic notation of degenerative disc disease, L5-S1, and opined that the disc disease "would not be more disc disease than would be expected from the natural aging process."  The rationale was that the service treatment records are void of degenerative disc disease.  This opinion and rationale is inadequate for adjudication purposes as it is non-responsive and does not allow the Board to make a fully informed determination.  The rationale is also inadequate as the examiner merely relied upon the absence of documentation in the record without any consideration of the Veteran's clinical history.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  When VA undertakes the effort to provide an examination, it must provide an adequate one.  See Barr.  Therefore, a new VA examination must be provided.  

TDIU

The pending claim for a higher rating for service-connected mechanical low back pain, as well as the pending claims of entitlement to service connection for a heart disorder and TBI, are inextricably intertwined with the Veteran's TDIU claim.  As such, these issues are inextricably intertwined and must be considered together.  As such, a decision on the Veteran's TDIU claim would, at this point, be premature.  See Henderson v. West, 12 Vet. App. 11, 20 (1998).

Finally, on remand, the RO must contact the Veteran and ask that he identify any additional, pertinent VA and non-VA treatment records that are outstanding.  Any such records must then be made accessible to the examiners.  See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.159(c)(2).

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran a corrective notice under 38 U.S.C.A. § 5103(a) that (1) notifies him of the evidence and information necessary to reopen the previously denied claim of service connection for chronic strain of the left and right inner thighs; and (2) notifies him of what specific evidence would be required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits. 

2.  Ask the Veteran to identify any additional sources of VA and non-VA treatment for his claimed disabilities.  After securing the necessary authorizations, obtain copies of all records referred to by the Veteran not already of record, including all outstanding, relevant VA medical records.  Any negative response should be in writing and associated with the claims file.

3.  Notify the Veteran that he may submit lay statements from himself as well as from individuals who have first-hand knowledge of the severity of his service-connected back disability, as well as the onset and continuity of his claimed heart disorder and TBI.  He should be provided an appropriate amount of time to submit this lay evidence.

4.  Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence showing the nature and severity of his service-connected mechanical low back pain and atrial fibrillation, and the impact of these disabilities (and other service-connected disabilities) on his ability to secure or follow a substantially gainful occupation.  He should be provided an appropriate amount of time to submit this lay evidence.

5.  After associating any additional records with the claims file, schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed heart disorder.  The claims folder (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed in conjunction with the examination.  

The examiner is to state whether it is at least as likely as not that the Veteran has a current heart disorder (to include hypertension, myocardial infarction, and coronary artery disease) that: a) had onset in service; or within one year of discharge; or c) is otherwise related to service, to include the findings of hypercholesteremia in service; or d) is caused or aggravated by a service-connected disability.  A complete rationale for all opinions must be provided.  

6.  Schedule the Veteran for a VA TBI protocol examination by a qualified examiner.  The claims folder must be reviewed.  All indicated tests must be performed, and all findings reported in detail.  The examiner is advised that the Veteran's service records document a head injury during service.  

The examiner is to state whether it is at least as likely as not that the Veteran has any current residuals of a TBI; including, but not limited to, balance problems, headaches, vision problems, congenitive defects, or other symptomatology.  The examiner must clearly identify and describe all current manifestations of the in-service head injury.  A complete rationale for all opinions must be provided.  

7.  Schedule a VA examination to determine the nature, extent, and current severity of the Veteran's back disability.  The entire claims file must be reviewed.  The examiner must identify all orthopedic and neurologic pathology found present and determine the nature, extent, frequency and severity of any such impairment.  

The examiner must clarify whether any currently diagnosed lumbar spine disorder, including degenerative disc disease and degenerative joint disease: a) had onset in service, or b) is causally related to the Veteran's service-connected mechanical low back pain.  To the extent possible, the examiner must also specify the symptoms associated with each separately diagnosed back disorder, and if it is not possible to make that distinction, to so state.  

All appropriate tests must be conducted, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present.  To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion of the Veteran's lumbar spine, i.e., the extent of his pain-free motion. 

The examiner is further asked to provide a medical opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, alone and in combination, renders him unable to secure or follow a substantially gainful occupation.

If the examiner opines that the Veteran's service-connected disabilities do not render him unemployable, the examiner must suggest the type or types of employment in which he would be capable of engaging with his service-connected disabilities, given his current skill set and educational background.

A complete rationale for all opinions must be provided.  If any VA examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, this should be indicated in the report, along with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

9.  Upon completion of the above requested development and any additional development deemed appropriate, readjudicate the appeal, to include entitlement to a TDIU.  If any determination remains unfavorable, the Veteran should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond before the case is returned to the Board for further review. 

The Veteran has the right to submit additional evidence and argument on the matter 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).



______________________________________________
D. JOHNSON
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs