Citation Nr: 1327930 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 06-37 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation for right lobe bronchiectasis with chronic obstructive pulmonary disease (COPD) in excess of 10 percent prior to November 20, 2007, and excess of 30 percent thereafter. 2. Entitlement to a compensable evaluation for bilateral tinea pedis. 3. Entitlement to service connection for peripheral neuropathy of the upper extremities, claimed as secondary to the service-connected diabetes mellitus. 4. Entitlement to service connection for emphysema, claimed as secondary to the service-connected right lobe bronchiectasis with chronic obstructive pulmonary disease (COPD). 5. Entitlement to an effective date earlier than October 8, 2003, for the grant of service connection for ischemic heart disease (IHD), claimed as due to in-service herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service from June 1966 to June 1970, including a year in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran has appealed the initial rating that was assigned for his for right lobe bronchiectasis with chronic obstructive pulmonary disease (COPD) when service connection was granted in a May 2007 rating action. The appellant is, in effect, asking for a higher rating effective from the date service connection was granted (January 11, 2001). Consequently, the Board will consider the entire time period in question, from the original grant of service connection to the present, for the pulmonary disability on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). While the case was in appellate status, the appellant's initial disability evaluation for his pulmonary disability was increased from 10 percent to 30 percent, effective from November 20, 2007. However, it is presumed that the appellant is seeking the maximum benefit allowed by law and regulation for that disability, and "it follows that such a claim remains in controversy where less than the maximum available benefit is awarded." AB v. Brown, 6 Vet. App. 35, 38 (1993). Because the assigned evaluation at issue does not represent the maximum rating available for the pulmonary disability, the appellant's increased rating claim has remained in appellate status. Therefore, the pulmonary issue on appeal is as listed on the title page. In April 2013, a Travel Board hearing was held at the RO before the undersigned. A transcript of that hearing has been associated with the claims file. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does currently contain evidence that is not already included in the paper claims files, namely VA medical treatment records dated between October 2010 and October 2011. The issue of entitlement to initial compensable evaluations for the service-connected surgical scars has been raised by the record, but that matter has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the matter, and it is referred to the AOJ for appropriate action. The claims for increased ratings for the pulmonary and foot disabilities, along with the claims for service connection for emphysema and peripheral neuropathy of the upper extremities are addressed in the REMAND portion of the decision below and those matters are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam during the Vietnam era, and he is presumed to have been exposed to Agent Orange or other herbicide agents during that time. 2. Ischemic heart disease (IHD), to include coronary artery disease (CAD), is a covered herbicide disease as of August 31, 2010. 3. The competent evidence of record indicates that the Veteran exhibited symptoms of IHD as early as March 1, 2001. CONCLUSION OF LAW The criteria for an effective date of March 1, 2001, but no earlier, for the grant of entitlement to service connection for CAD associated with herbicide exposure have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.816 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO sent the Veteran a letter in February 2011 informing him that the RO would be conducting a special review of his case for ischemic heart disease as required by orders of the United States District Court in the class-action case of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991) (Nehmer). Thereafter, service connection for coronary artery disease (a type of IHD) was granted in a June 2011 rating decision. The appellant's earlier-effective-date claim arises from his disagreement following the initial grant of service connection. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated - it has been proven, thereby rendering notice under 38 U.S.C.A. § 5103(a) no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the appellant's service medical treatment records have been associated with the claims file. VA outpatient medical treatment records have been associated with the appellant's claims file and his Virtual VA file. Private medical treatment records are also included in the claims file. The appellant was provided with notice as to the evidence needed for earlier effective dates, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All relevant facts with respect to the claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. The Merits of the Claim In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking entitlement to an effective date earlier than October 8, 2003, for the award of service connection for his coronary artery disease. October 8, 2003, was the date that the Veteran underwent a cardiac catheterization showing "severe three vessel coronary disease" that ultimately led to a diagnosis of atherosclerotic coronary artery occlusive disease. At that time, the Veteran reported that he had been experiencing intermittent left arm pain for the previous two years. He also stated that this pain began to involve his chest. Review of the Veteran's VA medical records reveals that he underwent an electrocardiogram (ECG) on March 1, 2001. The results of that testing were characterized as abnormal in that they demonstrated sinus bradycardia, early repolarization and the criteria for left ventricular hypertrophy. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim or a claim reopened after final disallowance "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. That is, VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." See 38 C.F.R. § 3.816. The Veteran served in the country of Vietnam during the Vietnam War era and, therefore, is a "Vietnam veteran" as defined in the regulations. See 38 C.F.R. § 3.307(a)(6). According to 38 C.F.R. § 3.816(b)(2) a "covered herbicide disease" includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991. Ischemic heart disease, to include coronary artery disease, was not added to the list of presumptive disabilities until August 31, 2010. See 75 Fed. Reg. 53, 202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010 rule specifically notes the Nehmer provisions apply to the newly covered diseases, to include coronary artery disease. Id. Accordingly, the Board concludes the Veteran is a "Nehmer class member" as defined in the law. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(3). As to 38 C.F.R. § 3.816(c)(2), if the class member's claim was received between May 3, 1989 and the effective date of the liberalizing law, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as provided in paragraph (c)(3) of this section. See 38 C.F.R. § 3.816(c)(2). A claim will be considered a claim for compensation if the claimant's application or other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or VA issued a decision on the claim between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Paragraph (c)(3) provides that if the class member's claim was received within one year of his or her separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service. As the Veteran separated from service in 1970 and was not diagnosed with CAD until more than 30 years after his service separation, paragraph (c)(3) is not applicable to this discussion. In this case, the record reflects that the Veteran served in the Republic of Vietnam and was granted presumptive service connection for coronary artery disease based on presumed exposure to herbicides during such service. In June 1990, the Veteran submitted a written statement in which he indicated that he was seeking service connection based on his exposure to Agent Orange. The RO never issued any rating action in relation to the June 1990 submission. In January 2001, the Veteran submitted a VA Form 21-4138 in which he sought service connection for a bilateral foot disorder and a lung disorder. Evidence gathered in connection with those claims included private medical treatment records dated in October 2003, that reflect a diagnosis of IHD rendered after a cardiac catheterization was performed on October 8, 2003. The evidence gathered also included a record from a VA ECG with abnormal results that was performed on March 1, 2001. As such, the provisions of 38 C.F.R. § 3.816 apply. Pertinent to the instant claim, if a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(2). As noted above, the Veteran was diagnosed with CAD following cardiac catheterization on October 8, 2003. However, the Veteran's CAD was described as "severe" at that time, he reported a two-year history of left arm and chest pain and there is evidence of record that could be construed as a diagnosis of CAD prior to that date - namely the March 1, 2001 abnormal ECG. Accordingly, the Board finds that the earliest possible effective date for the award of service connection for CAD is March 1, 2001, the date of the earliest documentation demonstrating that the Veteran was exhibiting symptoms of IHD. ORDER Entitlement to an effective date of March 1, 2001, for the award of service connection for CAD, is granted. REMAND A determination has been made that additional development is necessary with respect to the remaining issues on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below. Review of the evidence of record reveals that the Veteran was granted nonservice-connected pension benefits in a rating decision issued in November 2005. In a written statement dated in June 2006, the Veteran reported that he was getting Social Security Administration (SSA) disability benefits and indicated that his pension benefits had been decreased based on his receipt of SSA disability benefits. However, the records associated with the Veteran's SSA claim have not been obtained by or requested by VA. Although SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Masors v. Derwinski, 2 Vet. App. 180 (1992). Thus, the originating agency should obtain and associate with the record a copy of SSA's 2005/2006 determination, as well as copies of all medical records underlying that determination. The Board also observes that the most recent VA outpatient treatment records associated with the Veteran's VA claims file are dated in 2011. Since the Veteran's claim is are being remanded, all outstanding current VA outpatient treatment records must be obtained and associated with the Veteran's VA claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see also 38 U.S.C.A. § 5103A (b),(c). While the case is in remand status, all pertinent private inpatient and outpatient treatment records should also be obtained. The Veteran was last afforded a VA foot skin examination in July 2010 - more than three years ago. The Veteran was last afforded a pulmonary examination in July 2009, and his last pulmonary function test of record is dated in October 2009. The Veteran has indicated that these disabilities have worsened since the most recent VA examinations were conducted. When a veteran indicates that his disability has increased since his last VA examination, a reexamination should be scheduled. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding an examination necessary where a Veteran alleged worsening). Therefore, additional VA examinations are necessary. Thus, further development of the evidence is necessary, requiring the gathering of records and further investigation. In addition, the duty to assist includes obtaining records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, remand is required in order to fulfill the statutory duty to assist the appellant to develop the facts pertinent to the claims. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following: 1. Assure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Contact the Veteran to determine the names, addresses, and recent dates of treatment by any physicians, hospitals or treatment centers (private, VA or other government) that provided him with relevant evaluation or treatment for his service-connected lung and foot disabilities, as well as for the claimed emphysema and peripheral neuropathy of the upper extremities. After obtaining the appropriate release forms from the Veteran, contact each physician, hospital, or treatment center specified by the Veteran to obtain any and all medical or treatment records or reports relevant to each claim on appeal, including all VA treatment and all private treatment, to the extent not already on file. 3. Contact the Social Security Administration to obtain all the medical records associated with the Veteran's initial application for benefits, as well as any SSA Administrative Law Judge (ALJ) decision along with the associated List of Exhibits, as well as copies of all of the medical records upon which any decision concerning the appellant's entitlement to disability benefits was based. Associate those records with the claims file. 4. All items of correspondence, as well as any medical or treatment records obtained, must be made a part of the claims file. If private treatment is reported and those records are not obtained, the appellant and his representative must be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 5. After completing any additional notification and/or development action deemed warranted by the record, the Veteran must be afforded an examination by an examiner with sufficient expertise to assess the current severity of the Veteran's service-connected tinea pedis disability. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The RO or the AMC must ensure that the examiner provides all information required to rate the service-connected bilateral tinea pedis. 6. After completing any additional notification and/or development action deemed warranted by the record, schedule the Veteran for examination by a pulmonologist (due to the complexities of the medical questions in issue) in order to evaluate the etiology and severity of his current respiratory and/or pulmonary condition(s). The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The RO or the AMC must ensure that the examiner provides all information required for rating purposes. As part of this examination, the Veteran is to be afforded pulmonary function testing that includes results on FVC and DLCO (SB). If DLCO (SB) is not indicated, the examiner must explain why. Post-bronchodilator results must be obtained unless pre-bronchodilator results are normal or the examiner determines that post-bronchodilator results should not be used and states the reason why. The examiner must indicate in as specific terms as possible, the extent of impairment considered due to the right lobe bronchiectasis with chronic obstructive pulmonary disease (COPD) and the extent of any impairment due to other respiratory disability, e.g. emphysema (if diagnosed). If the examiner renders a diagnosis of emphysema, the examiner must opine : a.) Whether it is at least as likely as not caused by the Veteran's service b.) Whether it is at least as likely as not caused by the Veteran's service-connected diabetes mellitus c.) Whether it is at least as likely as not aggravated by the Veteran's service-connected diabetes mellitus 7. After completing any additional notification and/or development action deemed warranted by the record, schedule the Veteran for examination by a neurologist to determine the nature and etiology of any neurological disorders of the upper extremities present during the pendency of the claim. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies must be performed. Electromyography (EMG) and nerve conduction studies (NCS) must be completed. All pertinent X-ray, CT scan, MRI and EMG/NCS results must be discussed. The examiner must review all pertinent records associated with the claims file. The examiner must identify all current neurological disorder(s) of each one of the Veteran's upper extremities. The examiner must specifically explain which nerves of the right and left upper extremities are affected, if any. For each disorder identified, the VA examiner must provide an opinion concerning the following: a) Is the disorder a manifestation of the Veteran's nonservice-connected cervical disc pathology or of the nonservice-connected 1985 left radial nerve resection? b) When did each identified disorder manifest? c) Is any identified disorder at least as likely as not caused by the Veteran's service? d) Is any identified disorder at least as likely as not caused by the Veteran's service-connected diabetes mellitus? e) Is the identified disorder at least as likely as not aggravated by the Veteran's service-connected diabetes mellitus? If the examiner concludes there was aggravation, the physician must indicate what portion/percentage of the current upper extremity neurological pathology is due to such aggravation. 8. In assessing the relative likelihood as to origin and etiology of the conditions specified above, each physician must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed disorder is causally or etiologically related to some incident of the Veteran's service or to the Veteran's service-connected disabilities, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 9. For each examination, the rationale for all opinions expressed must also be provided. If any requested opinion cannot be provided, the examiner must explain why the opinion cannot be provided. If any examiner concludes that there is insufficient information to provide a requested opinion, the examiner must state whether the inability to provide the opinion is due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology or severity of the Veteran's claimed pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 10. Upon receipt of each VA examiner's report, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, refer the report to the examiner(s) for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 11. If any additional development is necessary to re-adjudicate any issue on appeal, especially in light of any newly received records, that development must be done. 12. Thereafter, re-adjudicate all claims remaining on appeal. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories. 13. If any benefit sought on appeal remains denied, the appellant and his representative must be provided a Supplemental Statement of the Case. An appropriate period of time must be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is hereby notified that it is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. These claims 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs