Citation Nr: 1305065	
Decision Date: 02/12/13    Archive Date: 02/21/13

DOCKET NO.  09-07 122A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Whether the VA Form 9 received on September 5, 2006, was timely filed as to the issue of entitlement to a rating in excess of 30 percent for myasthenia gravis, status/post thymectomy. 

2.  Entitlement to a rating in excess of 30 percent for myasthenia gravis, status/post thymectomy.  

3.  Entitlement to service connection for chronic pericarditis, claimed as secondary to myasthenia gravis.  

4.  Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Karl Kazmierczak, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Ganz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1995 to August 1998. 

This appeal arises before the Board of Veterans' Appeals (Board) from a September 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, and June 2008 and June 2009 rating decisions by the RO in Newark, New Jersey.  The Newark RO currently has jurisdiction of the claims.  The Veteran testified before the undersigned Veterans Law Judge in June 2012.  A transcript of the hearing is of record.

The issues of the timeliness of a substantive appeal, an increased rating for myasthenia gravis, and a 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

Pericarditis has been identified as a residual of a surgical procedural related to myasthenia gravis, as well as identified as a disorder with increased susceptibility due to medications for myasthenia gravis.


CONCLUSION OF LAW

Chronic pericarditis is secondary to service-connected myasthenia gravis.  38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the relevant laws and regulations, 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 (West 2002).  If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2012).  However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b) (2012).

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology.  Clyburn v. West, 12 Vet. App. 296, 302 (1999).

"Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the 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)(2) (2011); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012).  The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2012).  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.  

The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006.  Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected.  As the Veteran filed his claim in 2008, the amendment is applicable to the current claim. 

Service treatment records reflect no complaints of, treatment for, or diagnosis related to pericarditis or any symptoms reasonably attributed thereto.  In fact, the Veteran does not assert a direct relationship between pericarditis and service, and the evidence does not support one.  Therefore, service connection on a direct basis in not warranted.

Rather, the Veteran contends that he developed pericarditis as a result of a thymectomy undertaken to treat his service-connect myasthenia gravis.  On this point, the evidence is in conflict.  

On one hand, in March 2009 VA examination, the Veteran reported a history of myasthenia gravis and two surgeries for a thymectomy.  He related that he developed sharp chest pain associated with fevers about 1 week after the second surgery in November 2005.  He indicated that he had been hospitalized for evaluation of chest pain on multiple occasions and had one episode of chest pain every month that required evaluation.  

After a review of the file, the diagnostic studies, and a physical examination of the Veteran, the examiner diagnosed chronic pericarditis but found that it was not likely related to myasthenia gravis.  The rationale was that the medical evidence showed that the pericarditis had a viral etiology and that treatment with steroids would aid the pericarditis.  

On the other hand, a May 2009 note from the Veteran's attending physician connected with a hospitalization for pericarditis reported a past medical history of "[status/post] thymectomy in 06 with recurrent episodes of pericarditis since."  The clinical assessment was "[status/post] thymectomy with recurrent pericarditis likely as a complication of his surgery."  The physician also noted that the Veteran might benefit from discontinuation of prednisone as it favored recurrent of pericarditis.  This evidence suggests both that pericarditis was related to the surgery and that the medication for myasthenia gravis may have been causing the pericarditis to recur.

Similarly, a cardiology note dated during that same hospitalization reflected a medical history of "recurrent pericarditis after [] thoracic surgery."  While the cardiologist indicated that the etiology of pericarditis was unclear, he also indicated that "during surgery, fat was dissected from the pericardium, so it is possible that trauma to the pericardium initiated the pericarditis."  He also reflected that "prednisone has been associated with recurrent pericarditis, likely in the setting of viral pericarditis."  

While neither the attending physician or the cardiologist discussed the relationship between myasthenia gravis and pericarditis in terms of "as likely as not," it is reasonable to conclude that they believed that the Veteran's pericarditis was either related to the thymectomy surgery itself or that pericarditis had a viral etiology but that the prednisone used to treat myasthenia gravis was causing recurrent pericarditis.

At the very least, the conflicting opinions put the issue into equipoise and giving the Veteran the benefit of the doubt, service connection is warranted for chronic pericarditis as secondary to service-connected myasthenia gravis.  As such, the appeal is granted.


ORDER

Service connection for chronic pericarditis, claimed as secondary to myasthenia gravis, is granted.  


REMAND

With respect to the remaining issues of an increased rating for myasthenia gravis and a TDIU, the Board finds that a remand is needed.  In addition, the issue of the timeliness of a substantive appeal is remanded in order to provide the Veteran was a statement of the case (SOC).

Timeliness of Appeal.  Briefly, the evidence shows that the RO denied a claim for an increased rating for myasthenia gravis in February 2005.  The Veteran submitted a notice of disagreement (NOD) and an SOC was issued on June 26, 2006, and was told that he had 60 days to appeal.  On September 5, 2006, he filed a substantive appeal.   

On September 19, 2006, the RO notified the Veteran that the September 5, 2006, substantive appeal was not timely and his appeal was not perfected.  He was told that he had a right to appeal the decision.  In October 20, 2006, correspondence, he wrote that "he was writing this letter as a notice of disagreement in reference to the conclusion reached for my appeal.  Due to the fact that I have had several address changes during this year, I did not receive the paperwork from the VA in a timely manner."  He requested that his appeal be continued.  

The RO has taken no action on the October 2006 NOD.  The issue of whether the VA Form 9 received on September 5, 2006, was timely as to the issue of entitlement to a rating in excess of 30 percent for myasthenia gravis, with status post thymectomy, is currently before the Board.  See Manlicon v. West, 12 Vet. App. 238 (1999).  

Increased Rating for Myasthenia Gravis.  A remand is needed because it appears that all the treatment records from East Orange, Los Angeles, and the Bronx VAMCs have not been associated with the claims file.  Further, the Veteran has not undergone an examination for myasthenia gravis since May 2008.  At the hearing before the Board, he suggested that his disability had worsened since that time.  It is noted that he failed to report for examinations scheduled in October 2011.  He is informed that if he fails to report for examinations when scheduled, the claim will be denied.  See 38 C.F.R. § 3.655.  

TDIU.  The issue of entitlement to a TDIU was not certified for appeal; however, when evidence of unemployability is submitted during the course of an appeal from an assigned rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

At his June 2012 hearing the Veteran testified that he worked part-time, but could not work full time because of his myasthenia gravis.  He also submitted an April 2008 letter from his former employer noting that he was terminated in February 2006 from his position as a salesman/finance manger due to excessive absence/sick days and inability to perform his duties.  Therefore, the issue of a TDIU has been raised by the evidence and the Board has jurisdiction over it.

Accordingly, the case is REMANDED for the following actions:

1.   Issue an SOC regarding whether the VA Form 9 received on September 5, 2006, was timely as to the issue of entitlement to a rating in excess of 30 percent for myasthenia gravis, status post thymectomy.  Advise the Veteran and his attorney of the need to timely file a substantive appeal if appellate review is desired.  The issue should be certified to the Board only if a timely Form 9 substantive appeal is received. 

2.  Request clinical records from the East Orange and Bronx VAMCs from October 2011 to present.  

Any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

3.  Schedule the Veteran for an examination to determine the current level of severity and manifestations of myasthenia gravis.  The claims file must be provided to and reviewed by the examiner.  

The examiner is asked to identify the nature and severity of all ascertainable residuals of myasthenia gravis, including any impairment of motor, sensory, neurological, visual, mental function, and incontinence.  

All necessary testing should be conducted, as warranted.  If additional examinations are deemed necessary, they should be so ordered.

The examiner is further requested to render an opinion regarding the Veteran's ability to maintain substantial gainful employment based only on his service-connected myasthenia gravis and recurrent pericarditis.  

4.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  

If the benefits sought remain denied, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issues as well as a summary of the evidence received since the issuance of the last SSOC.  An appropriate period of time should be allowed for response.  

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



______________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs