Citation Nr: 1323129 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 12-10 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II. 2. Whether the severance of service connection for coronary artery disease (CAD), effective as of July 1, 2011, was proper. 3. Entitlement to a compensable evaluation for slight endogenous depression with psychophysiological headaches. 4. Entitlement to a higher evaluation than 20 percent for peripheral neuropathy of the right upper extremity. 5. Entitlement to a higher evaluation than 20 percent for peripheral neuropathy of the left upper extremity. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956 and from May 1958 to August 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2011, July 2011 and December 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In a July 2011 rating decision, the RO granted service connection for right and left upper extremity peripheral neuropathy and granted a 10 percent for each extremity. The Veteran filed a notice of disagreement with that decision stating that an earlier effective date of December 7, 2009 should be assigned. In an April 2012 RO decision, the RO assigned an earlier effective date of December 7, 2009 for the 10 percent evaluation assigned to both upper extremities. The Veteran filed a notice of disagreement in May 2012 stating that his neuropathy of his upper extremities was much worse than the currently assigned evaluation of 10 percent. In a July 2012 statement of the case, the RO assigned a 20 percent evaluation for each upper extremity from December 7, 2009. As the award was not a complete grant of benefits, the issue remained in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The case is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Hypertension The Veteran was afforded a VA examination for diabetes mellitus in January 2010. At that time, the examiner provided an opinion that the Veteran's hypertension did not appear to be due to diabetes. As to whether hypertension was aggravated by his service-connected diabetes, the examiner explained the hypertension was not worsened or increased by diabetes mellitus because there was no microalbuminuria noted currently. The examiner stated that there were very few recent medical records to review but that the Veteran had brought some records from Denver area hospitals. Since the time of this examination report, additional private treatment records were associated with the claims file that include treatment for both diabetes mellitus and hypertension. For this reason and as the examiner did not address whether hypertension was related to service, the Board finds that a new opinion is needed. Whether the severance of service connection for coronary artery disease (CAD), effective as of July 1, 2011, was proper. The Veteran was afforded a VA examination for his diabetes in January 2010. At that time, the examiner opined, based on the evidence of record, that the Veteran had some level of coronary artery disease. The examiner acknowledged that there were very little recent medical records to review and that the Veteran had brought some records from Denver area hospitals. In a November 2010 RO decision, the RO granted service connection for coronary artery disease on a presumptive basis as the Veteran had service in Vietnam. In December 2010 and January 2011, VA examiners opined that there was no evidence supporting a diagnosis of ischemic heart disease. It was also noted that there was no evidence of coronary artery disease. Based on this evidence, the RO issued a rating decision in January 2011 proposing to sever service connection for coronary artery disease. In a March 2011 statement, the Veteran explained that he had heart problems because he had a heart catheterization and was taking Plavix. The RO severed service connection for coronary artery disease effective July 1, 2011 in an April 2011 decision. Following the receipt of a notice of disagreement, the RO issued a statement of the case in April 2012 on whether the severance of service connection for coronary artery disease was proper. After the Veteran perfected his appeal, the RO issued a supplemental statement of the case in May 2012 that referred to the issue as "[c]ontinued entitlement to compensation for coronary artery disease." In August 2012, the Veteran submitted a VA ECG which noted "T wave abnormality, consider inferolateral ischemia." The Veteran also submitted an internet article explaining that "inferolateral ischemia" meant a heart attack of the left ventricle. The RO issued a supplemental statement of the case in September 2012 and referred to the issue as "service connection for ischemic heart disease" instead of whether the severance of service connection for coronary artery disease was proper. The Board finds that further development is needed before this issue can be adjudicated. Under applicable criteria, once service connection has been granted, it can be severed only upon the showing that the final rating decision granting service connection was "clearly erroneous." 38 C.F.R. § 3.105(d); see also Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Graves v. Brown, 6 Vet. App. 166 (1994). In this case, the question for consideration is whether the diagnosis relied upon in the November 2010 rating decision, specifically coronary artery disease, was erroneous. The provisions of 38 C.F.R. § 3.105(d) (2012) state that, "A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion." Clear and unmistakable error (CUE) is defined as "'a very specific and rare kind of 'error.' It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). When considering CUE for the purpose of severance of service connection benefits, section 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. Daniels, 10 Vet. App. at 480; see also Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997). Additional evidence was recently submitted concerning a VA ECG conducted in August 2012 and stress test conducted in August 2012. A new VA examination is required before the claim can be properly adjudicated. Given the complexity of the issue, the examination must be provided by a VA physician. Also, all further adjudication of this issue should be properly referred to as to "whether the severance of service connection for coronary artery was proper." Depression In a May 2012 statement, the Veteran explained that his neuropathy had worsened, and he had difficulty dressing, eating with silverware and drinking. He noted that his difficulties made him feel very uncomfortable in public places which had added to his depression and anxiety as well as his overall inability to work. As the Veteran claims that his depression has increased due to his neuropathy since his last examination in October 2011, the Board finds that another VA examination is warranted at this time. Neuropathy The Veteran submitted a statement in May 2012 disagreeing with the 10 percent evaluations assigned for his right and left upper extremities explaining that his disability was much worse as it affected his daily activities. He explained that he had difficulty getting dressed (like buttoning his shirt), trying to eat with silverware and having to use two hands to drink. The RO increased the Veteran's evaluations for his right and left upper extremities to two 20 percent evaluations in a July 2012 statement of the case. Despite this, the Veteran was never afforded a new examination. In light of the Veteran's reports of worsening symptomatology of his upper extremity neuropathy, the Board finds an updated VA examination is necessary before VA can make a fully informed decision on the merits of the Veteran's claim. TDIU The Board finds that the issue of TDIU is inextricably intertwined with the issues remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). VA treatment records It is unclear whether complete copies of VA treatment records have been obtained. As such, VA treatment records dating from 2009 should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain relevant VA medical treatment records pertaining to the Veteran not already of record since 2009 that are not already associated with the claims file. 2. After obtaining any additional records to the extent possible, obtain a medical opinion to address the etiology of hypertension. The claims folder should be made available to the clinician; the clinician should indicate that the claims folder was reviewed. (a) Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's hypertension began in or is related to his military service, to include as a result of presumed herbicide exposure therein. A complete rationale for the opinion must be provided. (b) Is it at least as likely as not (50 percent or greater likelihood) that hypertension is due to or the result of diabetes mellitus. A complete rationale for the opinion must be provided. (c) Is it at least as likely as not (50 percent or greater likelihood) that hypertension is aggravated (i.e., worsened) beyond the natural progress due to diabetes mellitus. A complete rationale for the opinion must be provided. 3. After obtaining any additional records to the extent possible, schedule the Veteran for a VA cardiovascular examination with an appropriate physician to determine whether he currently has any type of cardiovascular disease. The claims file, including a copy of this remand, must be reviewed by the examiner and such review must be noted in the examination report or an addendum. In determining whether the Veteran has a cardiovascular disorder, perform all necessary diagnostic testing and associate the results with the examination report. The examiner should answer the following question: Can you certify that, in light of all accumulated evidence, the diagnosis of coronary artery disease, made by the January 2010 examiner was clearly erroneous? The examiner's attention is directed to the Veteran's statement that the use of Plavix indicates he has a heart disorder. The examiner's attention is also directed to ECG testing completed in August 2012 indicting "T wave abnormality, consider inferolateral ischemia" and other testing showing a left ventricle ejection fraction of 71%. Please provide a complete explanation for the opinion. 4. After obtaining any additional records to the extent possible, schedule the Veteran for a VA examination for the purpose of determining the current severity of his service-connected slight endogenous depression with psychophysiological headaches. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. The examiner should describe in detail all current manifestations of the Veteran's psychiatric disability. The examiner must also enter a complete multiaxial evaluation, and assign a GAF, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. A complete rationale for all opinions must be provided. Any report prepared must be typed. The examiner should also assess the frequency and severity of the Veteran's psychophysiological headaches, if any. 5. After obtaining any additional records to the extent possible, schedule the Veteran for a peripheral neuropathy examination to evaluate the current nature and severity of his service-connected peripheral neuropathy of the upper extremities. The claims file, including a copy of this remand, must be reviewed by the examiner and such review must be noted in the examination report or an addendum. The examiner's attention is directed to the Veteran's statements that he has difficulty buttoning his shirt, trying to eat with silverware and having to use two hands to drink. The examiner should describe which nerve is affected and whether the Veteran has complete paralysis of the nerve or severe, moderate, or mild incomplete paralysis. The examiner should include a rationale for the opinion provided. 6. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing any additional development deemed necessary, readjudicate the issues on appeal (referring to the severance issue as: Whether the severance of service connection for CAD, effective as of July 1, 2011, was proper) in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a SSOC and provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S.S. Toth Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).