Citation Nr: 1318491	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  07-28 536	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUES

1.  Entitlement to service connection for ischemic colitis.

2.  Entitlement to service connection for an upper respiratory disorder, including asthma and chronic obstructive pulmonary disease (COPD).

3.  Entitlement to service connection for coronary artery disease (CAD), including as secondary to service-connected rheumatic heart disease, status post pacemaker with scar.

4.  Entitlement to an increased rating for the rheumatic heart disease, status post pacemaker with scar, evaluated as 30-percent disabling prior to May 7, 2010, (from May 7 to July 31, 2010, the Veteran had a temporary 100 percent convalescent rating) and as 60-percent disabling since August 1, 2010.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served on active duty in the Air Force from May 1952 to April 1956, so partly during the Korean Conflict.  He also served in the Navy during peacetime from November 1958 to March 1959.

This appeal to the Board of Veterans' Appeals (Board) is from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

Regarding his claims for gastrointestinal and respiratory disorders, the Board sees that VA outpatient records list diagnoses of gastrointestinal disorders that include gastroesophageal reflux disease (GERD) and ischemic colitis, as well as respiratory disorders that include asthma and COPD.  Hence, all of these diagnoses must be considered in deciding these claims.  See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (requiring VA to broadly construe the benefits sought by a Veteran); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (similarly holding that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).  The Clemons Court found that, where a Veteran's claim identifies posttraumatic stress disorder (PTSD) without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.


These and other claims were previously before the Board in March 2012, at which time the Board denied service connection for onychomycosis but instead granted service connection for GERD.  Whereas the Board remanded the remaining claims for further development and consideration.

The Appeals Management Center (AMC) since has issued an April 2012 decision implementing the Board's grant of service connection for the GERD and assigning an initial 10 percent rating for this condition retroactively effective from June 16, 2005.  The Veteran did not, in response, separately appeal either that initial rating or effective date.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).  So his claim for GERD apparently has been resolved to his satisfaction.


FINDINGS OF FACT

1.  The Veteran was diagnosed with ischemic colitis during the course of this appeal, but it was an acute diagnosis and he has not established that any gastrointestinal issues, including his GERD, which occurred during his military service are related to the eventual post-service diagnosis of ischemic colitis; moreover, there was no diagnosis or suggestion of this condition for over three decades after his discharge from service.

2.  Although he also has a current diagnosis of COPD, he has not established that any respiratory issues that occurred during his military service are related to his current diagnosis of COPD; there was no diagnosis of this condition for over three decades after his discharge from service; and a VA examiner has associated the COPD instead with the Veteran's long-term, extensive history of smoking.

3.  As well, he has a current diagnosis of CAD, but he has not established that it is related to his active duty military service, there is no evidence he suffered from CAD during his active duty service or within one year of his discharge; instead, there was no diagnosis of this condition for over three decades after his discharge from service; and the medical evidence indicates the rheumatic heart disease he had in service (and now as a consequence service-connected rheumatic heart disease, status post pacemaker with scar) did not cause or permanently worsen his CAD.

4.  Prior to May 7, 2010, his service-connected rheumatic heart disease, status post pacemaker with scar, was manifested by a workload capacity of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, and angina.

5.  From August 1, 2010 to May 6, 2012, his service-connected rheumatic heart disease, status post pacemaker with scar, was manifested by more than one episode of congestive heart failure (CHF) and a workload capacity of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, and angina.

6.  Since May 7, 2012, his service-connected rheumatic heart disease, status post pacemaker with scar, has been manifested by a workload capacity of less than 3 METs resulting in dyspnea, fatigue, and angina.


CONCLUSIONS OF LAW

1.  His ischemic colitis is not the result of disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 7109 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.6, 3.303 (2012).

2.  His respiratory disorder, including asthma and COPD, also is not the result of disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 7109 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.6, 3.303 (2012).

3.  As well, his CAD is not the result of disease or injury incurred in or aggravated by his active military service, may not be presumed to have been incurred in service, and is not proximately due to, the result of, or aggravated by a 
service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 7109 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.6, 3.303, 3.307, 3.309, 3.310 (2012).

4.  The criteria are not met for a rating higher than 30 percent prior to May 7, 2010, or for a rating higher than 60 percent from August 1, 2010, to May 6, 2012, for the rheumatic heart disease status post pacemaker with scar.  38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.7, 4.100, 4.104, Diagnostic Code 7000 and 7000-7018 (2012).

5.  However, the criteria have been met for a higher 100 percent rating since May 7, 2012, for the rheumatic heart disease status post pacemaker with scar.  38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.7, 4.100, 4.104, Diagnostic Code 7000-7018 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

Before addressing the underlying merits of claims, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claims have been satisfied under the Veterans Claims Assistance Act (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).


To this end, upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).

These notice requirements apply to all elements of a service-connection claim, including the "downstream" disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

In this case, a letter satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in July 2005, prior to initially adjudicating his claims in the February 2006 decision at issue in this appeal, so in the preferred sequence.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  That letter informed him of the evidence required to substantiate these claims for service connection and of his and VA's respective responsibilities in obtaining this supporting evidence.  That letter was sent before Dingess/Hartman was decided, so did not also address the "downstream" disability rating and effective date elements of these claims.  But this is nonprejudicial, i.e., harmless error because service connection is being denied for ischemic colitis, a respiratory disorder, to include asthma and COPD, and CAD, hence, any question as to the appropriate disability rating or effective date is ultimately moot.  

With regards to the issue of entitlement to an increased rating for the rheumatic heart disease, status post pacemaker with scar, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the VCAA notice, if provided concerning a claim of entitlement to service connection for a particular disability, also should include information concerning the disability rating and effective date elements of the claim, which as mentioned are "downstream" elements once service connection is granted.  See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

This claim did not arise in that context, however, instead, from the very outset as a claim for a higher, i.e., increased rating for an already established service-connected disability.  And specifically with regards to the notice requirements for increased-rating claims, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) vacated the lower Court's (CAVC's) previous decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that "generic" notice in response to a claim for an increased rating is all that is required, and that VA does not have to apprise the Veteran of alternative DCs or request evidence of how the disability at issue impacts daily life.  In any event, an August 2009 letter provided Dingess notice.  That letter was not sent prior to initially adjudicating this claim in the February 2006 rating decision at issue in this appeal, but as the claim since has been readjudicated in the February 2010 supplemental statement of the case (SSOC), and even more recently in the November 2012 SSOC, this, in effect, rectified ("cured") the timing defect in the provision of the notice because it preserved the intended purpose of the notice such that the Veteran was still given ample opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

And as the U. S. Supreme Court explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), VCAA notice errors are not presumptive prejudicial, rather, must be determined on a case-by-case basis.  Also, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, aside from this, that it is unduly prejudicial - meaning outcome determinative of his claims.  Thus, absent this pleading or showing in this particular instance, the duty to notify has been satisfied.

VA also has satisfied its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO has obtained all records that he identified as possibly pertinent, including his service treatment records (STRs) and post-service VA and private medical evaluation and treatment records.  Indeed, the Board's reason for remanding these claims in March 2012 was to obtain all outstanding VA and private treatment records and to provide the Veteran VA examinations.  A remand by the Board confers on the appellant the right to compliance with the remand orders, and the Board itself commits error as a matter of law in failing to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).  Here, the Veteran failed to respond to an April 2012 letter requesting any additional treatment records, but examinations were provided for each of his claims, including obtaining medical opinions when necessary regarding the etiologies of his claimed disabilities (specifically, regarding those concerning his purported entitlement to service connection) and severity of his disability (as specifically concerning his remaining claim for a higher rating for his already service-connected rheumatic heart disease).  Hence, there was compliance with these remand directives, certainly substantial compliance.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Indeed, VA and private contract examinations and opinions were provided and obtained in November 2005, December 2005, April 2008, August 2009, January 2011, and May 2012.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture.  See Schafrath v. Derwinksi, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2011).  These VA examinations and opinions mentioned are more than adequate, as they collectively are predicated on a review of the medical records in the Veteran's claims file.  The examiners considered all of the pertinent evidence of record, including the Veteran's statements, and examined him personally.  They also provided rationale for their opinions, relying on the findings from their evaluations of the Veteran's disabilities and, when necessary, citing to these findings and the other records supporting their conclusions.


There is no obligation to have the Veteran reexamined, yet again, simply as a matter of course or merely because of the passage of time since an otherwise adequate examination.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995).  And according to the records in the file, there is no suggestion of a material change in his rheumatic heart disease since his most recent VA compensation examination in May 2012.  So reexamination is not required.  38 C.F.R. § 3.327(a).

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of his claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  He has not identified any other outstanding evidence that would tend to support his claims, and there is no suggestion of any VA error in notifying or assisting him in developing is claims that could result in undue prejudice to him in deciding these claims or that could otherwise affect the essential fairness of the adjudication of these claims.

In deciding these claims, the Board has reviewed all of the evidence in his claims file, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  He therefore must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012).

General Statutes, Regulations and Case Law Governing Claims for Service Connection

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999).

Certain diseases, such as CAD, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

If chronicity (permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  

Under § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  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 disability and the post-service symptomatology.  see Hickson, 12 Vet. App. At 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection).

In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).

A recent decision of the Federal Circuit Court, however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013).  The claim in Walker was for hearing loss and the appellant was arguing that the CAVC had failed to apply § 3.303(b) to the lay testimony the Veteran had offered alleging he had experienced hearing loss since his service in 1945.  The Federal Circuit Court held that continuity of symptomatology simply was inapplicable, however, because § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  The Court explicitly rejected the appellant's argument that a dictionary definition of "chronic" should be used instead.


The key holding is:

We thus reject Walker's broader argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases.  Suggestions or holdings to the contrary in any decisions of the Veterans Court, and dictum to the contrary in our precedent, are incorrect and of no effect.

For a little background, VA's Professional Staff Group II (PSG II) initially had argued that continuity of symptomatology had been properly considered by the RO and the Board.  However, the Federal Circuit Court sua sponte had ordered supplemental briefing on whether § 3.303(b) applied to any conditions that were not recognized as "chronic" under § 3.309(a).  In its supplemental briefing, PSG II reviewed the regulatory history of the provision back to Roosevelt's Executive Orders under the Economy Act of 1933 and argued that Savage v. Gober, 10 Vet. App. 488, 498 (1997), was wrongly decided.  The Federal Circuit Court apparently agreed.

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).


In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service, Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements).

The Veteran is competent to report on what he can observe and feel through his senses.  See Layno.  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Symptoms, not treatment for them, are the essence of any evidence of continuity of symptomatology.  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  But once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the lower Veterans Court (CAVC) similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In deciding an appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, possibly accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11.  The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another.  Evans v. West, 12 Vet. App. 22, 31 (1998).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings.  The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).  In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).  However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

A.  Ischemic Colitis

The Veteran had a VA examination in November 2005 to address whether his ischemic colitis was related to his gastric complaints in service, in March 1956, or secondarily to his rheumatic heart disease and/or CAD.  Additionally the examiner was to address whether the Veteran's ischemic colitis was aggravated or permanently worsened by the rheumatic heart disease or CAD.  The Veteran reported that he had regurgitation, substernal burning, dysphagia, and bloating.  The examiner noted the Veteran had had two colonoscopies done, one in 2002 at a VA hospital and another in 2004 at a private hospital.  The 2004 colonoscopy was in response to rectal bleeding and lower abdominal pain.  He noted that was the first time he had experienced those symptoms.  The examiner reviewed the Veteran's claims file, including both in-service and post-service treatment records, and observed the Veteran had GERD as well as an episode of ischemic colitis in February 2004.  The examiner determined that it was more likely than not that the Veteran had ischemic colitis in 2004, but that the abdominal symptoms earlier experienced in service in 1956 were less likely than not the cause of that 2004 episode of ischemic colitis.  The examiner pointed out the 1956 progress note described symptoms not associated with ischemic colitis.  Finally the examiner noted that it was less likely as not that the Veteran's ischemic colitis was related to his history of rheumatic fever or his CAD.  Rather, it was more likely than not that his history of rheumatic fever and CAD had no effect on his episode of ischemic colitis.

That evaluating VA physician acknowledged the Veteran had been treated for abdominal pain during service, in 1956, and that the post-service record indicated he had been treated for ischemic colitis beginning in 2004 (and for GERD beginning in 2005).  In reporting his diagnostic impression this examiner stated it was more likely than not the Veteran had ischemic colitis as documented in the record.  However, he determined that it was less likely than not the current ischemic colitis is related to the one episode of gastric problems in service.  He found that the symptom presentation as read from the 1956 progress note was not typical of ischemic colitis symptoms.

It appears, however, that physician considered only that one episode of epigastric distress and did not also take into account the fact that the Veteran also was treated for a 6-week history of epigastric pain in November 1952 and for abdominal cramps in April 1954.  Furthermore, during his second period of service, the February 1959 Medical Survey report shows he was treated for motion sickness.  The accompanying symptoms included persistent nausea and severe vomiting.  As such an additional examination was requested in the Board's March 2012 Remand to address each of these concerns.

To that end, the Veteran was afforded another VA examination in May 2012.  The examiner diagnosed the Veteran with a history of ischemic colitis.  The Veteran reported being admitted around 2004 for rectal bleeding.  He denied rectal bleeding since 2004.  He also denied diarrhea, but reported episodes of constipation with abdominal discomfort.  He stated that he took a stool softener daily which helped him with constipation.  The examiner noted the Veteran was being treated for GERD.

The Veteran exhibited abdominal distension, that is, bloating intermittently a couple of times a week and lower abdominal pain with constipation that improved with bowel movement.  He did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the intestinal condition.  He did not exhibit weight loss, malnutrition, tumors, or neoplasms.  Upon examination his abdomen was soft, nondistended, with minimal epigastric tenderness, guarding, or rebound tenderness.  A complete blood count (CBC) was performed, but there were no significant diagnostic test findings.  

The examiner reviewed the Veteran's claims file, including all the medical records, and noted the Veteran was admitted in February 1959, while in service, for motion sickness.  He was seen in November 1952 with complaints of epigastric pain and in April 1954 for stomach cramps.  He also was seen in March 1956 with complaints of occasional epigastric and lower abdominal pain including burning and cramping for two weeks with assessment of functional gastrointestinal (GI) complaint.  A follow-up appointment in April 1956 noted evidence of improvement in his abdominal pain.  His November 1958 re-enlistment examination did not note any stomach, liver, or intestinal trouble.  His February 1959 medical board examination discharged him with a diagnosis of motion sickness.  

With regards to gastrointestinal issues, post-service medical records showed treatment for GERD.  An October 2002 colonoscopy showed diverticulosis and a hyperplastic polyp.  He was seen for ischemic colitis in 2004 after presenting with rectal bleeding.  A 2004 colonoscopy revealed edematous, erythematous, friable, hemorrhagic and ulcerated mucosa of the descending colon and the sigmoid colon with findings suggestive of ischemic bowel.  

After comprehensively reviewing the relevant evidence and findings, the examiner determined the Veteran did not have any then current symptoms of ischemic colitis during the then current examination.  He reported mainly problems with constipation.  The 2004 episode of ischemic colitis had resolved.  The examiner explained that symptoms of ischemic colitis generally are acute in onset and transient and were not present until almost 40 years after the Veteran's active duty service had concluded.  Thus, it is less likely than not that his prior episode of ischemic colitis was attributable to his service.

For reasons already discussed, the Board acknowledges the Veteran is competent to give testimony about what he experienced during and since the conclusion of his service inasmuch as his firsthand lay testimony concerning a factual matter is competent.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).  For example, he is competent to report that he had gastrointestinal issues while in service and that he has continued to experience those symptoms ever since.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  As explained, in certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition.

But also keep in mind that ischemic colitis is not one of the conditions identified in 38 C.F.R. § 3.309(a) as chronic (i.e., permanent), per se, so not subject to the continuity of symptomatology pleading and proof exception provided by § 3.303(b).

Moreover, in reviewing the evidence on the whole and determining its relative probative value, the Board assigns the most weight to the opinion of the May 2012 VA examiner.  He rendered his opinion after reviewing the totality of the evidence.  His report reveals that he performed a thorough examination of the Veteran and provided a full and complete rationale for his opinion completely disassociating the ischemic colitis from the Veteran's military service.  In addition, the opinion is highly probative because it reconciles all of the medical evidence of record.  As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases).  As the May 2012 examiner's opinion is based upon an evaluation of the Veteran and review of the claims folder, including the STRs, the Board finds that it is entitled to the most weight regarding the diagnoses and etiology of the Veteran's ischemic colitis.

Additionally the Board notes that not even the Veteran contends that he has had rectal bleeding associated with the ischemic colitis other than the episode in 2004.  He merely contends that he had gastrointestinal issues in service and continues to have them in various forms (GERD, etc.) now.  Ultimately, the Board is not discounting the history of this disability he has provided.  Rather, the Board finds the May 2012 examiner's opinion that none of the in-service gastrointestinal issues are the cause of the ischemic colitis which is generally of an acute nature as most persuasive.  The only competent medical opinion comes from the May 2012 VA examiner and is clearly against a cause-and-effect relationship or correlation between this condition and the Veteran's military service.  Therefore, the Board concludes that the preponderance of the evidence is against a finding of a nexus between any current ischemic colitis and his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Inasmuch as the preponderance of the competent and credible evidence of record is against a finding of a nexus to service, the Veteran does not meet the criteria for service connection.  Accordingly, service connection for ischemic colitis is not warranted, and the appeal of this claim must be denied.  In arriving at this decision, the Board has considered the doctrine of reasonable doubt.  However, this doctrine is only invoked where there is an approximate balance of evidence that neither proves nor disproves the claim.  Here, though, for the reasons and bases discussed, the preponderance of the evidence is against the Veteran's claim.  Therefore, this doctrine is inapplicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

B.  Respiratory Disorders - COPD and Asthma

The Veteran also claims that he has a respiratory disorder, specifically asthma, which began during his military service.  His STRs show that on different occasions during his service he complained of shortness of breath.  During the April 1956 examination conducted prior to him separating from his first period of service, the examiner noted a history of shortness of breath associated with fatigue only.  The Veteran also reported a history of shortness of breath during the examination he had in November 1958 for enlistment into the Navy.

Post-service VA compensation examination reports show he continued to complain of shortness of breath, along with his rheumatic heart disease complaints.  In October 1959 the RO notified him that service connection had been denied for bronchitis.

VA outpatient records dated in January 2000 show he was diagnosed with COPD.  The record on appeal also contains a VA pulmonary function test (PFT) dated in November 2002, which confirms he has obstructive airway disease.  And a February 2004 private medical report shows he indicated a 30-year history of asthma.

In light of the complaints and symptoms he had in service, including of shortness of breath, and his continuing post-service complaints, as well as the relevant diagnoses since made, the Board remanded this claim in March 2012 to provide the Veteran a VA examination for a medical nexus opinion addressing whether there was any relationship or correlation between the complaints and symptoms in service, during the years since, and the current diagnoses.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

To that end, the Veteran was afforded a VA examination in May 2012.  The examiner observed the Veteran had been diagnosed with COPD.  The examiner also noted the Veteran had problems with dyspnea that began shortly after his service in the 1970s.  The Veteran reported having used inhalers for asthma since the 1970s.  He also reported that he started smoking at the age of 18 and had quit just some 2 years prior to that examination.  He reported smoking about a package of cigarettes a day until 1970, when he started smoking cigars, also a pack a day.  He stated that he used his asthma inhaler 2-3 times a day, which provided only temporary improvement in his symptoms.  His respiratory condition required the use of oral bronchodilators daily.  The examiner concluded the Veteran had asthma and pulmonary embolism and related diseases.  The Veteran did not report any asthma attacks in the last year.  With regards to the pulmonary embolism and related diseases, the Veteran had bilateral lower extremity deep vein thromboses (DVTs) with placement of IVC filter with a history of pulmonary embolism around 2011 and is on chronic coumadin therapy.  A chest X-ray revealed mild tortousity of the thoracic aorta with atherosclerotic calcification in the aortic arch.  The lungs were mildly hyperexpanded but clear.  The osseous structures appeared to be intact and there was mild dorsal spondylosis.  The examiner performed PFT that revealed limitations in pulmonary function.  The Veteran reported minimal dyspnea with minimal physical exertion.

The examiner reviewed the Veteran's claims file, including his medical records both in service and post service.  He noted the Veteran reported shortness of breath associated with fatigue in 1956.  He also reported shortness of breath during his 
re-enlistment examination in November 1958.  The medical reports noted that he Veteran had shortness of breath in association with his rheumatic heart disease.  VA outpatient treatment records diagnosed the Veteran with COPD in 1997.  A PFT in 2002 had confirmed obstructive airway disease.  A February 2004 private medical report showed the Veteran reported a 30-year history of asthma.  The examiner noted the Veteran has an extensive history of significant tobacco use, a risk factor for COPD.  Testing showed moderate airflow limitation without improvement after bronchodilators.  The examiner opined that, as the Veteran was diagnosed with COPD in 1997, more than 30 years after his active duty service, and because he had a significant smoking history, his COPD was less likely than not related to the respiratory problems he had during his active duty service.  In fact, the examiner believed the Veteran's extensive smoking history was more likely the cause of his COPD.  The Veteran's dyspnea in service was more likely related to his rheumatic heart disease.  The examiner noted the February 2004 private treatment record that reported a 30-year history of asthma, but then noted the Veteran did not currently have a diagnosis of asthma, indeed, there was no other mention of asthma in the treatment records.

For the reasons already discussed, the Board acknowledges the Veteran is competent to give testimony about what he experienced during and since the conclusion of his service.  For example, he is competent to report that he had shortness of breath while in service and that he has continued to experience this ever since.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  As explained, in certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition.

But asthma and COPD are not conditions identified in 38 C.F.R. § 3.309(a) as necessarily chronic, per se, so the Veteran cannot show continuity of symptomatology since his service as a means under § 3.303(b) of alternatively linking these now claimed conditions to his service.  See Walker.

In reviewing the evidence on the whole and determining its relative probative value, the Board assigns the most weight to the opinion of the May 2012 VA examiner.  He rendered his opinion after reviewing the totality of the evidence.  The report reveals he conducted a thorough examination of the Veteran and provided a full and complete rationale for his opinion.  In addition, the opinion is highly probative because it reconciles all of the medical evidence of record.  As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases).  As the May 2012 examiner's opinion is based upon an evaluation of the Veteran and review of the claims folder, including his STRs, the Board finds that it is entitled to the most weight regarding the diagnoses and etiology of the Veteran's respiratory disorder.

The Veteran contends that he suffered from shortness of breath while in service and that his current respiratory issues are related to the respiratory issues he had in service.  The VA examiner explained, however, that the Veteran's complaints in service were attributable to his rheumatic heart disease, which already has been adjudicated to be a service-connected disability.  The Veteran therefore already is receiving compensation for disability due to this other condition, so including for the shortness of breath, etc., which he has as a result or consequence of it.

Ultimately, the Board is not discounting the history of this disability he has provided.  Rather, the Board finds the May 2012 examiner's opinion that the in-service respiratory issues were more likely related to his already service-connected rheumatic heart disease, and that his currently diagnosed COPD is the result of his extensive smoking habit, as most persuasive.  The only competent medical opinion comes from the May 2012 VA examiner and is clearly against a cause-and-effect relationship or correlation.  Therefore, the Board concludes that the preponderance of the evidence is against a finding of a nexus between any current diagnosis of COPD and his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").


Further concerning Veteran's history of chronic smoking and consequent COPD, for a claim, as here, received by VA after June 9, 1998, service connection is expressly precluded for any disability related to chronic smoking.  See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300; Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685, 865-66 (1998).

And, lastly, as concerning asthma, the VA examiner refuted the notion that the Veteran has any current asthma, even considering his previously recounted 30-year history of this condition.

The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). 

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer  v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

So it is at least debatable whether the Veteran has shown he has had asthma since the filing of his claim for this condition.  But, regardless, there has not been the required attribution of his asthma to his military service, including to the shortness of breath he experienced in service owing to the fact that it has been attributed, instead, to his already service-connected rheumatic heart disease.

Hence, the preponderance of the competent and credible evidence of record is against a finding of a nexus to his service, so he has not met the requirements for showing his entitlement to service connection for this claimed condition.  Accordingly, service connection for a respiratory disorder, including COPD and asthma, is not warranted, and the appeal of this claim must be denied.  In arriving at this decision, the Board has considered the doctrine of reasonable doubt.  However, this doctrine is only invoked where there is an approximate balance of evidence that neither proves nor disproves the claim.  Here, though, for the reasons and bases discussed, the preponderance of the evidence is against the Veteran's claim.  Therefore, this doctrine is inapplicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

C.  CAD

The Veteran also claims that his CAD was either caused or aggravated by his military service.  In the alternative, he claims that his service-connected rheumatic heart disease either caused or aggravates his CAD.

When deciding a claim for service connection, the Board must consider all potential bases of entitlement - so direct, presumptive and secondary.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson, 21 Vet. App. at 552 (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court has jurisdiction by virtue of an NOD satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. 

While the Veteran received treatment for his rheumatic heart disease during service, his STRs do not refer to CAD.  Post-service VA records show that CAD initially was diagnosed in May 1997.  Since then medication has been prescribed for treatment of it.

He was provided a VA compensation examination in December 2005 for a medical nexus opinion concerning the etiology of his heart-related disorders.  The VA examiner stated that the rheumatic heart disease diagnosed during service at the age of 19 had no relationship with and was not the cause of the CAD.  But while that VA examiner addressed causation, it was not clear from his statement "has no relationship and is not the cause of the CAD" included the conclusion that the Veteran's service-connected rheumatic heart disease also did not aggravate his CAD, especially in light of the fact that this examiner does not refer to aggravation specifically in the report.  

Two opinions are required for secondary service connection claims:

1.  Is the claimed disorder "caused by" or "due to" the 
service-connected disability? AND

2.  Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)?

Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006).  An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation.  Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b).


This oversight therefore was significant since secondary service connection also may be established for a disability that is aggravated by a service-connected disability.  In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

As such, the Board remanded this claim in March 2012 Board to obtain a supplemental (addendum) medical opinion addressing both direct and secondary service connection.

The Veteran resultantly was provided an additional VA examination in May 2012.  The examiner diagnosed CAD, valvular heart disease, and rheumatic heart disease.  He noted the Veteran was already service connected for the rheumatic heart disease, which is addressed later in this decision when adjudicating the rating for it.  The examiner observed the Veteran had a stent placement and pacemaker inserted in 2010.  The Veteran reported dyspnea with physical activities such as walking about a half of block or moving too fast, but denied dyspnea at rest.  He also reported daily fatigue, intermittent episodes of chest pain with physical activities and occasionally at rest that occur a few times daily.  He further reported left-sided sharp chest pain lasting about for one minute and resolving spontaneously.  He reported taking isosorbide daily to help with his chest pain.  Finally he reported having a syncopal episode in 2010 which had led to the pacemaker insertion.

The examiner observed the Veteran was diagnosed with CAD in 1997.  His STRs were unremarkable for documentation of CAD.  The examiner reviewed the claims file, including medical records, and determined there was no direct causational link between rheumatic heart disease and CAD.  The examiner opined that it was less likely than not the Veteran's CAD was caused by or related to his service-connected rheumatic heart disease.  The examiner noted the Veteran's rheumatic heart disease was stable on the last echocardiogram, which showed a normal ejection fraction and mild aortic stenosis.  The examiner additionally determined that it was less likely than not the Veteran's CAD had been aggravated by his rheumatic heart disease because the rheumatic heart disease had not been active.

Aside from that VA examiner's unfavorable medical opinion concerning all aspects of this claim, the Board sees that, during the earlier December 2005 VA examination, the examiner not only concluded that CAD was unrelated to the rheumatic heart disease, he also determined the Veteran's CAD was hereditary in nature, so apparently congenital.  VA's General Counsel has explained that there is a distinction under the law between a congenital or developmental "disease" and a congenital or developmental "defect" for service-connection purposes.  Congenital and developmental "defects" are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes.  38 C.F.R. §§ 3.303(c), 4.9.  However, service connection may be granted for "diseases" (though not "defects") of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations.  See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)); 38 C.F.R. §§ 3.303(c), 3.306.  The General Counsel indicated that support for this position could be found in VA regulations, themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities.

The mere fact that a condition is the result of a congenital cause does not necessarily mean that the condition, itself, manifested before service or that it was not aggravated by service.  In Quirin v. Shinseki, 22 Vet. App. 390, 394, 396 (2009), the Court held that the presumption of soundness applies if a Veteran's congenital condition was not noted at entry into service.  In reaching this conclusion, the Court cited to Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), wherein the Federal Circuit Court had made clear that the only prerequisite for the application of the presumption of soundness is that the Veteran's entry examination have been free and clear of any noted disease or disabilities.  Quirin, 22 Vet. App. at 396.  It thus appears that service connection may be established for a congenital "disease" by finding that it was incurred or aggravated in service.

Also according to the VA General Counsel 's opinion, although service connection cannot be granted for a congenital or developmental "defect", such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability.  VAOPGCPREC 82-90.  But such disorders require more than an increase in severity during service in order to warrant a grant of service connection.  The evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability.  Id.

Thus, in these situations to allow for proper legal analysis of a Veteran's claim as it pertains to an alleged disability, medical clarification may be necessary as to whether the Veteran's condition is a congenital or developmental "disease" or "defect."  See id; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009).  If the claimed disorder is a "disease", an opinion may be required as to whether it was as likely as not aggravated by his period of active service beyond its natural progression.  If instead the claimed disorder is a "defect", an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect.

The May 2012 VA examiner addressed whether the Veteran's CAD was a congenital defect or disease.  The examiner explained that family history of premature CAD (< 55 years in men and <65 years in women, first-degree relatives) is only one of the risk factors for development of CAD.  The examiner noted that there was no evidence that the Veteran had CAD in service.  He was not diagnosed with this condition until 1997, more than 30 years after his service.  As such, the examiner noted it was unnecessary to provide an opinion regarding aggravation in service.  The Veteran did not have CAD upon entering service and, indeed, CAD was not first diagnosed until 1997, 30 years after service and after the Veteran was outside the range of premature CAD.


In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence, against the medical evidence.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following the conclusion of his service during which there was no clinical documentation of the claimed disorder).

But having said that, negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).  Still, though, ultimately, the Board must consider all of the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

The VA examiner has disassociated the Veteran's CAD from his service, either as directly or presumptively incurred in service (the latter as evidenced by the 30 years that passed before the initial diagnosis) and alternatively as secondarily related to service, again, meaning caused or aggravated by a service-connected disability, which in this particular case is the rheumatic heart disease.  And in reviewing the evidence on the whole and determining its relative probative value, the Board assigns the most weight to this opinion of the May 2012 VA examiner.  He rendered his opinion after reviewing the totality of the evidence.  The report reveals he performed a thorough examination of the Veteran and provided a full and complete rationale for his opinion, which is where most of the probative value of an opinion is derived, not instead from mere review of the claims file, although that, too, has significance if review of the file would have revealed important facts that might have changed the basis or outcome of the opinion.  Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008),  In addition, the opinion is highly probative because it reconciles all of the medical evidence of record.  As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases).  As the May 2012 examiner's opinion is based upon an evaluation of the Veteran and review of the claims folder, including his STRs, but even more importantly contains the required discussion of the underlying medical rationale, the Board finds that it is entitled to the most weight regarding the diagnoses and etiology of the Veteran's CAD.


Inasmuch as the preponderance of the competent and credible evidence of record is against a finding of a nexus to service, the Veteran does not meet the criteria for service connection for his CAD.  Accordingly, service connection for CAD is not warranted, and the appeal of this claim must be denied.  In arriving at this decision, the Board has considered the doctrine of reasonable doubt.  However, this doctrine is only invoked where there is an approximate balance of evidence that neither proves nor disproves the claim.  Here, though, for the reasons and bases discussed, the preponderance of the evidence is against the Veteran's claim.  Therefore, this doctrine is inapplicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

D.  Increased Rating for the Rheumatic Heart Disease, Status Post Pacemaker with Scar

The RO denied the Veteran's claim for an increased rating for his rheumatic heart disease in the February 2006 rating decision from which this appeal ensued.  However, subsequent to the placement of a pacemaker in May 2010, in a March 2011 rating action the RO granted a temporary 100 percent convalescent rating (see 38 C.F.R. § 4.30) retroactively effective from that May 2010 procedure and then a 60 percent rating beginning as of August 1, 2010.  Even though the RO increased the schedular rating for this disability during the pendency of this appeal, there remains the question of whether the Veteran is entitled to an even higher rating, that is, during the times when he did not have that temporary 100 percent convalescent rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating the assignment of a higher rating, unless the highest possible rating for all time periods at issue, does not abrogate an appeal, unless the Veteran expresses satisfaction with a lesser rating, albeit higher rating than he had).

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  But where entitlement to compensation already has been established and an increase in disability rating is at issue, as here, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical, that is, temporal focus, is the evidence generated during the appeal period and, more specifically, since one year prior to filing this increased-rating claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  If there have been occasions since when the disability has had differing degrees of severity, then the Board must "stage" the rating to compensate the Veteran for this variance.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Thus, VA's determination of the "present level of disability" may result in concluding the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending.  Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that Veteran had disability "at some point during the processing of his claim," satisfied service-connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  In Hart, the Court found no basis for drawing a distinction between initial ratings (see Fenderson v. West, 12 Vet. App. 119, 125-26 (1999)) and increased-rating claims for applying staged ratings.  Accordingly, it was held that a staged rating is appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  

A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or here, her] earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

Generally, the Board is directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

The Veteran's rheumatic heart disease was originally rated as 30-percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7000.  Diagnostic Code 7000 provides a 100 percent rating during active infection with valvular heart damage and for three months following cessation of therapy for active infection.  Thereafter, with valvular heart disease (documented by findings on physical examination and either echocardiogram, Doppler echocardiogram, or; cardiac cathereterization) resulting in:  chronic congestive heart failure, or; 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.

Diagnostic Code 7000 provides a 60 percent rating if there has been more than one episode of acute congestive heart failure in the past year, or; 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; 30 percent if workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electro-cardiogram, echocardiogram, or X-ray; and 10 percent if workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required.

This disability is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7018-7000.  That Diagnostic Code was assigned after the Veteran received a pacemaker in May 2010.  In the assignment of diagnostic code numbers, hyphenated diagnostic codes may be used.  Injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined.  Diseases will be identified by the number assigned to the disease itself, followed by a hyphen, with the residual condition listed last.  So a hyphenated diagnostic code reflects a rating by analogy.  See 38 C.F.R. §§ 4.20 and 4.27.

Under Diagnostic Code 7018, implantable cardiac pacemakers are rated as 
100-percent disabling for two months following hospital admission for implantation or re-implantation.  The Veteran already received a temporary 100 percent rating to compensate him for his convalescence following the implantation of his pacemaker in May 2010.  Diagnostic Code 7018 directs that, thereafter, ratings under Diagnostic Codes 7010, 7011, and 7015 are applicable.

A rating higher than 30 percent is not available under Diagnostic Code 7010.  A 100 percent rating under Diagnostic Code 7011 requires evidence of an indefinite period from date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator in place.  A 100 percent rating is available under Diagnostic Code 7011 or Diagnostic Code 7015 with evidence of chronic congestive heart failure, or; 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.

Effective January 12, 1998, the revisions to the Rating Schedule incorporated objective measurements of the level of physical activity, expressed numerically in metabolic equivalence (METs), at which cardiac symptoms develop.  In addition to the preceding, VA revised that portion of the Rating Schedule for evaluation of specified cardiovascular disorders, to consist of those rated under Diagnostic Codes 7000 through 7007, 7011, and 7015 through 7020 - effective October 6, 2006.  See 71 Fed. Reg. 52,459-60 (Sept. 7, 2006); codified at 38 C.F.R. § 4.100.  The revised regulation contains the following new provisions:  (1) In all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained.  (2) Even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and when a 100 percent evaluation can be assigned on another basis.  (3) If left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the Veteran's cardiovascular disability.  Id.

Here, the revised regulation regarding evaluation of the relevant cardiovascular disorders may be applied as of the October 6, 2006 effective date.  And though the Veteran has not yet received notice of these provisions, as explained below, they could not realistically result in any higher rating than that awarded for the relevant time frames; hence, the absence of such notice was merely harmless error.  See Bernard v. Brown, 4 Vet. App. 384 (1993), 4 Vet. App. at 384 (if the Board addresses an issue not first considered by the RO, the Board must discuss whether this is prejudicial to the veteran).  Regarding the most recent revision, the Board notes that the changes have no substantive affect on the claim for increase.

Prior to May 2010, the Veteran was afforded a VA examination in December 2005.  The examiner noted the Veteran had no evidence of rheumatic valvular or myocardial heart disease at the time of the examination and that he exhibited limited exercise capacity due to various disabilities including CAD and asthma, with estimated energy levels at or above 6-8 METs.

The Veteran was afforded another VA examination in August 2009.  Upon examination he exhibited normal heart sounds with normally functioning left ventricular dysfunction and normal ejection fraction at 60 percent.  He exhibited limited exercise capacity with estimated energy levels at or above 5-7 METs.  

Since May 2010, when he had his pacemaker inserted, he is not shown to have been admitted to a hospital for an indefinite period for sustained ventricular arrhythmia or aneurysmectomy, and he did not have an automatic implantable Cardioverter-Defibrillator in place.

He had another VA compensation examination in January 2011, this time on contract by QTC Medical Services.  He reported constant symptoms of angina, shortness of breath, and fatigue, but no dizziness or syncope attacks.  In the prior year he reported congestive heart failure had occurred 2 times and each episode had lasted for two weeks.  He had a heart attack in April 2010 and an angioplasty in February 2010.  The cardiac pacemaker, as mentioned, resultantly was implanted in May 2010.  Following that, he believes his condition stabilized.  He reported his functional impairment as fatigue.  Upon examination he exhibited normal heart sounds with no evidence of congestive heart failure, cardiomegaly, or cor pulmonale.  His estimated METs level was greater than 3, but not greater than 5.  Chest X-rays were within normal limits.  He therefore also did not have a workload of 3 METs or less.  However, he reported that he had experienced at least 2 congestive heart failures within the past year.  The January 2011 QTC examiner, however, failed to specifically opine on whether the Veteran's congestive heart failure is considered chronic in nature, as defined under Diagnostic Codes 7011 and 7015.  The report of that January 2011 QTC examination consequently did not contain the findings needed to properly adjudicate this claim for a higher rating for the rheumatic heart disease in terms of assessing its severity, so supplemental comment concerning this was needed.  38 C.F.R. §§ 3.327, 4.2.  See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995); VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991).

To that end the Veteran was afforded another VA examination in May 2012.  The examiner diagnosed CAD, valvular heart disease, and rheumatic heart disease.  The examiner observed the Veteran was already service connected for the rheumatic heart disease.  He also observed the Veteran had received a stent placement and pacemaker insertion in 2010.  The Veteran reported dyspnea with physical activities such as walking about a half of block or moving too fast, but denied dyspnea at rest.  He also reported daily fatigue, intermittent episodes of chest pain with physical activities and occasionally at rest that occur a few times daily.  He further reported left-sided sharp chest pain lasting for one minute and resolving spontaneously.  He reported taking isosorbide daily to help with his chest pain.  Finally he reported having a syncopal episode in 2010 that led to the pacemaker. 

The Veteran takes medication to treat his heart condition:  Atenolol for myocardial infarction or atrial fibrillation, isosorbide, metoprolol, and amlodipine.  He has had a myocardial infarction (i.e., heart attack) in 1990.  The examiner noted the Veteran had acute congestive heart failure with one episode in the previous year for which he was admitted to Cobb Wellstar.  He did not have choronic congestive heart failure.  

The Veteran had a cardiac arrhythmia intermittently, but not in the last year.  The examiner again noted that the Veteran had pacemaker placement in 2010 for sick sinus syndrome.  The Veteran has an aortic heart valve condition with history of mild aortic stenosis by echo.  

He has had rheumatic heart disease and was treated for an active infection, rheumatic fever, while in the military, but he does not have any active infection currently.  Treatment for the active infection was completed during the 1950s.  

He has had two surgical procedures for heart treatment including percutaneous coronary intervention (angioplasty) with DES placement in 2010 in the Chicago VA Hospital and an implanted cardiac pacemaker in a VA hospital in 2010 for sick sinus syndrome.  

On objective physical examination his heart rate was 60 with a regular rhythm and normal heart sounds and clear auscultation of his lungs.  He exhibited diminished dorsalis pedis and posterior tibial peripheral pulses.  Peripheral edema bilaterally in the lower extremities with a 2+ reading.  His blood pressure was 142/80.  The examiner noted the presence of a scar, but it was not painful or unstable.  There was evidence of cardiac hypertrophy that was noted on echocardiogram.  The Veteran had an EKG and a chest X-ray.  It was noted the X-ray was abnormal with a transvenous pacer and pulmonary hyperexpansion suggestive of COPD.  There was mild tortuosity of the thoracic aorta with atherosclerotic calcification in the aortic arch with mildly hyperexpanded lungs.  Osseous structures appear to be intact, but there was mild dorsal spondylosis.  An echocardiogram noted abnormal wall thickness with borderline left ventricular hypertrophy and mild aortic stenosis.  

He also had METs testing to determine the activity level at which symptoms such as dyspnea, fatigue angina, dizziness, or syncope develop.  An interview-based METs testing revealed dyspnea, fatigue, and angina consistently with activities such as eating, dressing, taking a shower, slow walking (2 mph) for 1-2 blocks.  The examiner noted the Veteran's METs level was not due solely to his heart condition, but that it is not possible to accurately estimate the percentage involved with other disabilities including COPD and peripheral arterial disease.  His METs level was noted to be 1-3 METs.

Considering this evidence, the Board finds that the Veteran is not entitled to a rating higher than 30 percent prior to May 7, 2010, when he received the temporary 100 percent convalescent rating under 38 C.F.R. § 4.30.  According to the evidence dated prior to May 7, 2010, he did not exhibit a workload of not greater than 5 METs, or more than one episode of acute congestive heart failure as required to meet the criteria for a 60 percent rating under Diagnositic Code 7000.

Since August 1, 2010, however, so since even termination of his temporary 100 percent convalescent rating, while he has not been shown to have been admitted to a hospital for an indefinite period for sustained ventricular arrhythmia or aneurysmectomy, and he did not have an automatic implantable Cardioverter-Defibrillator in place, or chronic congestive heart failure, he did exhibit a workload capacity of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, during his most recent VA examination.  As such, he is entitled to a higher rating of 100 percent since that VA examination on May 7, 2012, although there is no evidence supporting an increase during the immediately preceding period from August 1, 2010 to May 6, 2012.

According to Harper v. Brown, 10 Vet. App. 125, 126 (1997), three possible effective dates may be assigned for a higher rating for a service-connected disability depending on the facts of the particular case:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

So determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred.  38 C.F.R. §§ 3.155, 3.400(o)(2).  See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a 
one-year grace period for filing a claim following an increase in the severity of a service-connected disability).


Here, following cessation of the temporary 100 percent convalescent rating on July 31, 2010, it was not again until that VA examination on May 7, 2012, when the Veteran evidenced his entitlement to a 100 percent rating for his rheumatic heart disease.  That date, then, was effectively when he was again entitled to this higher (and maximum possible) schedular rating, and he has continued to be entitled to this rating ever since.

Many of the rating criteria are objective, such as METs measurements, and thus cannot be determined by lay statements and testimony alone.  So, in sum, his mere lay statements and testimony cannot sustain his claim.  But, at least as of his May 7, 2012 VA compensation examination, there also is the required medical evidence supporting assignment of the highest possible schedular rating of 100 percent.

In evaluating this claim for a higher rating, the Board also has considered whether he is entitled to a greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  An extra-schedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1).  See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).


As held in Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the disability are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's rheumatoid heart disease with the established criteria found in the Rating Schedule for this disability shows the rating criteria reasonably describe his disability level and symptomatology.  His primary complaints are of chronic chest pain and shortness of breath, especially with any measure of exerting himself, but for the reasons and bases already discussed these and his other complaints are contemplated by the diagnostic codes mentioned.

Moreover, even if the schedular evaluations for this disability are inadequate (which again they are not), he does not exhibit other related factors such as those provided by the regulation as "governing norms."  Most, if indeed not all, of the evaluation and treatment he has received for his heart condition has been on an outpatient basis, not as an inpatient, certainly not frequent inpatient.  So the record does suggest he has required frequent hospitalization.  Nor is there suggestion his disability caused marked interference with his employment, meaning above and beyond that contemplated by his existing ratings.  According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired).  Hence, the Board is not obligated to refer this claim for extra-schedular consideration.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

For the foregoing reasons and bases, the Board finds that the claim for a rating higher than 30 percent prior to May 7, 2010, must be denied.  He had a temporary 100 percent convalescent rating from May 7, 2010 to July 31, 2010.  He is not shown to be entitled to a rating higher than the existing 60 percent from August 1, 2010 to May 6, 2012, so this portion of his claim also is denied.  However, since May 7, 2012, he is entitled to another increase in the rating for his disability, again to the highest possible level of 100 percent.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine and applied it in increasing the rating to this highest possible level as of May 7, 2012.  At all other times at issue, however, the preponderance of the evidence is against the claim, so the doctrine has no application for these other periods of time.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).



ORDER

The claim of entitlement to service connection for ischemic colitis is denied.

The claim of entitlement to service connection for an upper respiratory disorder, including asthma and COPD, also is denied.

The claim of entitlement to service connection for CAD, including as secondary to the service-connected rheumatic heart disease status post pacemaker with scar, is as well denied.

The claim of entitlement to a rating higher than 30 percent for the rheumatic heart disease, status post pacemaker with scar, prior to May 7, 2010, and to a rating higher than 60 percent from August 1, 2010 to May 6, 2012 is denied.

But a higher 100 percent rating is granted for the rheumatic heart disease, status post pacemaker with scar, since May 7, 2012, subject to the statutes and regulations governing the payment of VA compensation.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs