Citation Nr: 1327747 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-12 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable disability evaluation for a bilateral pulmonary embolism. ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1985 to January 1986 and from May 1986 to June 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, that, in pertinent part, granted service connection and assigned initial noncompensable disability evaluation for a bilateral pulmonary embolism, effective July 1, 2008. During the course of the appeal, jurisdiction of this case was transferred to the RO in Houston, Texas. When this case was previously before the Board in September 2012, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. For the reasons stated below, the RO/Appeals Management Center (AMC) in Washington, DC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file was completed to ensure thorough review of the evidence of record. FINDING OF FACT There has been resolution of bilateral pulmonary embolism, and the Veteran has remained asymptomatic during the period of this appeal. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral pulmonary embolism are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b) (1), 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6817 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353 -23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this appeal, the RO provided notice to the Veteran in January 2008 that explained what information and evidence was needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. This letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran was not provided pre-decisional notice with respect to his request for an increased evaluation. The Court has indicated that in a claim for a higher initial evaluation after the claim for service connection has been substantiated and allowed, as is the situation in this case, that further notice is not required. See Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran's underlying claim of service connection was granted and this is an appeal of the initial rating. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Service treatment records (STRs) and pertinent post-service records are associated with the claims file. The Veteran was also afforded appropriate VA and VA-contracted examinations. A review of the reports of examination and an addendum submitted in March 2013 reveals that all subjective and objective findings necessary for evaluation of the Veteran's claim were observed and recorded. Thus, the examinations and addendum appear complete and adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that the Veteran has not indicated any symptomatology relevant to his increased rating claim or has alleged that the disabilities have increased in severity since the last examination. Thus, the Board finds that remand for additional VA examinations is not required in this instance. In addition, the case was remanded in 2012 to obtain information from the Veteran as to post-service private treatment for the disability herein at issue. In October 2012 the Veteran was requested to execute and return the necessary forms for obtaining all post-service private records pertaining to his disability. As the Veteran did not execute and return the forms, the RO/AMC was not required to take additional action and substantially complied with the Board's remand instructions in this regard. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. § 3.159(c) (1) (ii) (requiring claimant to cooperate fully with VA's efforts to obtain non-Federal records, including providing authorization for release of records). See also Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). The Board finds that no additional RO action to further develop the record on the claim is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal principles Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2012). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2012). In addition, where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). The Court has also held that in a claim of disagreement with the initial rating assigned following a grant of service connection separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. The Veteran's bilateral pulmonary embolism has been rated under 38 C.F.R. § 4.97, DC 6817, applicable to pulmonary vascular disease. The criteria of DC 6817 specifically reference pulmonary embolism. Under DC 6817, when the disease is asymptomatic, following resolution of pulmonary thromboembolism, a noncompensable rating is assigned. A 30 percent rating is assigned when there is symptomatic pulmonary vascular disease, following resolution of acute pulmonary embolism. A 60 percent rating is assigned when there is chronic pulmonary thromboembolism requiring anticoagulant therapy, or following inferior vena cava surgery without evidence of pulmonary hypertension or right ventricular dysfunction. The maximum 100 percent rating is assigned when there is primary pulmonary hypertension; or chronic pulmonary thromboembolism with evidence of pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale; or pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale. A note to the Rating Schedule indicates that other residuals following a pulmonary embolism should be evaluated under the most appropriate rating code. Analysis As noted above, service connection for bilateral pulmonary embolism was granted in an August 2008 rating decision with an evaluation of 0 percent, effect July 1, 2008. Historically, STRs show that in 2006 the Veteran was hospitalized and diagnosed with bilateral pulmonary embolism. The Veteran was afforded a VA-contracted examination in February 2008 in which he reported shortness of breath. Physical examination showed symmetric breath sounds, no rhonchi or rales, and expiratory phase was within normal limits. A pulmonary function test (PFT) was normal. X-rays of the chest were normal. The examiner stated that as for the claimed condition of bilateral pulmonary embolism, there was no diagnosis because the condition had resolved. A private treatment record in July 2008 showed that the Veteran had non-cardiac chest pain. In April and May 2009 statements, the Veteran stated that he received emergency room care for severe chest pain and still felt chest pain in his chest or lungs. In response to the Board's September 2012 remand, the Veteran was afforded a VA examination in February 2013 in which he reported that he was not currently taking any medication, that he had frequent episodes of pressure in the left side of the chest, and was employed in a sedentary job. X-rays of the chest were normal. Electrocardiography (EKG) was normal. The examiner opined, in pertinent part, that there was no objective evidence of any residual from the one episode of pulmonary embolism in 2006, and the Veteran was stable without need for any medications. The VA examiner submitted an addendum opinion in March 2013 in which he stated that the Veteran currently had no symptoms of pulmonary embolism (asymptomatic); he continued to have chronic chest pain which, by objective examination, was unrelated to his prior pulmonary embolism. The above evidence reflects that the Veteran last had an episode of pulmonary embolism in 2006, with no subsequent episodes or residuals. The aforementioned examiners in February 2008 and September 2012 provide the only probative medical opinions of record, stating that there was no evidence to support a diagnosis after the pulmonary embolism in 2006. The examiners explained the reasons for their conclusion based on an accurate characterization of the evidence of record including pulmonary test results, X-rays, and EKG results; therefore, their opinions are entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). There is no contrary medical opinion in the evidence of record. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in arriving at the determination above the Board has considered not only the medical evidence but also the lay evidence presented by the Veteran in the form of his correspondence to VA and statements made during VA and VA-contracted examinations. As a layperson, the Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording this lay evidence full competence and credibility, such lay evidence does not support a schedular rating higher than that currently awarded for the Veteran's bilateral pulmonary embolism at any time during the pendency of this appeal. That is, the Veteran's pulmonary embolism has been asymptomatic since his last episode in 2006, and his symptoms therefore most nearly approximate the criteria for a noncompensable rating under DC 6817. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's pulmonary embolism residuals are fully contemplated by the applicable rating criteria. As shown above, the criteria contemplate that pulmonary embolism will resolve and be asymptomatic and the weight of the evidence reflects that that is the most accurate characterization of the Veteran's disability picture in the instant case. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required and referral for consideration of an extraschedular rating for bilateral pulmonary embolism is thus not warranted. 38 C.F.R. § 3.321(b) (1). Finally, under certain circumstances, the claim for an increased rating for a service-connected disability includes a claim of entitlement to a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). However, such circumstances are not present here. The record reflects that the Veteran is gainfully employed. See September 2012 VA examination report. Consequently, the Board finds there is no implicit claim for a TDIU. Rice v. Shinseki, 22 Vet. App. at 453. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's bilateral pulmonary embolism has been asymptomatic since his last episode in 2006, and his symptoms therefore most nearly approximate the criteria for a noncompensable rating under DC 6817. Moreover, given the lack of symptomatology attributable to this disability, a higher rating is not warranted under any other potentially applicable diagnostic code. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an initial compensable rating for bilateral pulmonary embolism must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to an initial compensable disability evaluation for a bilateral pulmonary embolism is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs