Citation Nr: 1329338 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 06-17 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b) for service-connected transient ischemic attack (TIA) disability, rated as 100 percent disabling from August 13, 2004, to February 28, 2005, and as 10 percent disabling from March 1, 2005. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from September 1973 to December 1993. This matter is before the Board of Veterans' Appeals (Board) from a January 2012 Order issued by the United States Court of Appeals for Veterans Claims (Court), that vacated the Board's July 2011 decision that dismissed a claim of entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b) for service-connected disabilities. In March 2012, the Board denied entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b) for service-connected CAD and hypertension and remanded the issues of entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b) for service-connected scars and TIAs for referral to the Director of Compensation and Pension to render an opinion. An opinion was obtained in August 2012, and the claims returned to the Board. In February 2013, the Board denied entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b) for service-connected scars and remanded the issue of entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b) for TIAs. In a June 2013 rating decision, the agency of original jurisdiction (AOJ) awarded a temporary 100 percent evaluation, effective August 13, 2004, based on evidence showing TIAs, and a 10 percent rating from March 1, 2005, for TIA residuals. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Throughout the period on appeal when the Veteran has not been in receipt of a temporary total rating, symptoms associated with his service-connected TIA, if any, have been fully contemplated by the criteria in the rating schedule. CONCLUSION OF LAW Throughout the pendency of the appeal, excluding the period from August 13, 2004, to February 28, 2005, when the Veteran was in receipt of a temporary total rating, the criteria for a disability rating on an extraschedular basis in excess of 10 percent for TIA residuals have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Codes (DC) 8008- 8009 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, the appeal essentially stems from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection for hypertension. In Dingess/Hartman, the Court held that in cases in which 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 section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. In such a case, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). As the Veteran has not alleged any prejudice, that burden has not been met. Accordingly, the Veteran is not prejudiced by a decision on the appeal, regardless of the timing or content of the notice provided by the RO. The record also reflects that VA has made reasonable efforts to obtain relevant records. In this regard, the RO obtained service treatment records, relevant post service treatment records, and a VA examination and opinion report. The Board notes that the Veteran's last examination was in January 2010, over three years ago, but finds that the medical evidence of record is not too old to adequately evaluate the Veteran. See VAOPGCPREC 11-95 (a claim need not be remanded solely because of the passage of time when an otherwise adequate VA examination was conducted); see also Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007) (noting that another VA examination is not warranted based on the mere passage of time). The Veteran has not alleged that his condition has worsened since his most recent examination, nor has he submitted any additional evidence, lay or clinical, demonstrating current residuals related to his transient ischemic attacks. Thus, the Board finds that remand for a new examination is not warranted. Also of record and considered in connection with the claim are written statements provided by the Veteran. The Veteran has not identified any other evidence relevant to this claim. The Board notes that it previously remanded the matter on appeal in March 2012 and February 2013 for development, to respectively include referral for extraschedular consideration to the Director of Compensation and Pension and reconsideration of the Veteran's disability rating according to provisions of DC 8008 of the rating schedule. Pursuant to those remands, an August 2012 opinion was obtained from the Director of Compensation and Pension, and the AOJ issued a June 2013 rating decision assigning disabilities ratings in accordance with the rating criteria of DC 8008. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Thus, consideration of this matter on the merits at this time is appropriate. Introductory Matters As a preliminary matter, the Board must clarify the issue on appeal. A November 2011 Joint Motion for Remand (JMR) granted by the January 2012 Court order remanded specifically the issue of entitlement to an increased rating on an extraschedular basis for TIAs, not entitlement to an increased schedular rating. The underlying original claim from which the parties to the JMR extracted the current issue on appeal was one of entitlement to an increased initial rating for service-connected hypertension; the Veteran has not alleged entitlement to an increased rating for his service-connected TIA residuals on either a schedular or extraschedular basis. Rather, the parties to the JMR inferred the claim from the Board's phrasing of an issue on appeal as entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b) for "service- connected disabilities." Despite the fact that, in March 2009 and February 2011 decisions, the Board specifically addressed only the issues of coronary artery disease and hypertension in relation to extraschedular consideration, to include in the March 2009 remand directives, the parties to the JMR determined that the issue of entitlement to extraschedular consideration for service-connected disabilities other than coronary artery disease and hypertension, to include a TIA disability, was on appeal. The Board remanded this claim, in part, in February 2013 for RO reconsideration of its noncompensable rating for TIAs under DC 8008. The Board did not assume jurisdiction over a schedular rating for TIAs, but noted the need to defer adjudication of the extraschedular aspect of the TIA rating pending the RO's reconsideration of an apparent error. The issue of entitlement to an extraschedular rating is dependent, in part, upon an analysis as to whether the assigned schedular rating contemplated all manifestations of service-connected disability. See Thun v. Peake, 22 Vet. App. 111 (2008). While the AOJ characterized the issue in the May 2013 supplemental statement of the case as entitlement to a rating in excess of 10 percent for TIAs to include extraschedular consideration, the Board finds that the only issue on appeal concerns the Veteran's entitlement to an increased rating for TIAs on an extraschedular basis only. Additionally, it is unclear why the November 2011 JMR instructed the Board to refer the specific issue on appeal to the Director of Compensation and Pension for extraschedular consideration without first providing the Board the opportunity to decide whether such referral was warranted, or alternatively, by providing a specific finding of fact reflecting that the criteria for referral for extraschedular consideration had been met. Nevertheless, the Board complied in its March 2012 remand and the Director of Compensation and Pension provided an opinion in August 2012, thereby substantially complying with the JMR. See McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) ("[T]he Board has a duty on remand to ensure compliance with the favorable terms stated in a [JMR] or explain why the terms will not be fulfilled."). See Stegall v. West, 11 Vet. App. 268, 271 (1998). Analysis The Board has reviewed all the evidence in the Veteran's claims file and the electronic, paperless Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim herein decided and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The current appeal over which the Board has jurisdiction - as directed by the JMR, pertains to entitlement to an increased rating on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) for service-connected TIAs. Disability ratings "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1. The ultimate percentage of a disability rating assigned to a veteran is "considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of the disability." Id. Where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In light of the foregoing, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun, 22 Vet. App. at 115. Historically, the Veteran experienced multiple TIAs in August 2004 secondary to service-connected hypertension. He was granted service connection for TIAs and assigned a noncompensable disability rating, effective April 12, 2010, by an October 2010 rating decision. In June 2013, the AOJ granted an increased temporary 100 percent rating, effective August 13, 2004, followed by a 10 percent rating effective March 1, 2005, for TIA residuals. The Veteran's TIA disability is currently rated by analogy to DC 8008 (thrombosis of a brain vessel). The Board finds that to be the most appropriate diagnostic code under which to rate the Veteran's disability and that code is the point of comparison for purposes of evaluation of entitlement to an extraschedular rating. The Board must consider the provisions of the rating schedule to determine whether they fully contemplate the Veteran's symptoms. Under DC 8008, the vascular condition of thrombosis of a brain vessel is to be evaluated as 100 percent disabling for six months. Thereafter, the disability is to be evaluated based upon any chronic residuals thereof. A minimum 10 percent evaluation will be assigned. 38 C.F.R. § 4.124a, DCs 8008. Thus, VAs own rating criteria contemplate that a TIA results in some residual neurologic disability which is to be represented by a minimum 10 percent disability rating - or, a 10 percent impairment of earning capacity for the remainder of his life. 38 C.F.R. § 4.124a, DC 8008. See generally 38 C.F.R. § 4.2. Neurological conditions, except as otherwise provided, will be rated in accordance with a schedule of ratings set out at 38 C.F.R. § 4.124a, which provides that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consideration is to be given to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rating shall be by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Initially, the Board notes that for the period from August 13, 2004, through February 28, 2005, the Veteran is in receipt of the maximum 100 percent rating provided by the rating schedule for his TIA disability. Thus, a higher rating on an extraschedular basis is not warranted for that period and the Board will confine its analysis to whether an extraschedular rating is warranted for a TIA disability since the date of service connection excluding the period during which the 100 percent rating was in effect. The Veteran has not claimed, nor does the evidence of record show, that he experiences residuals from his August 2004 TIAs. In this regard, private treatment notes dated through June 2009 and VA treatment notes dated through September 2009 are negative for complaints of, or treatment related to, any additional TIAs OR residual disability from the August 2004 TIAs. To the contrary, those records show that the Veteran generally denied symptoms such as syncope, blurred vision, and difficulty swallowing, and he was routinely found to be neurologically intact. The Veteran was afforded a VA examination in April 2010 relating to his TIAs. Significantly, he denied having any TIA recurrences. He also denied any syncope, loss of speech, difficulty swallowing, or paralysis of any of his extremities. Neurological examination revealed intact cranial nerves, full motor strength, and normal reflexes, gait and stance, speech, and sensation. The examiner noted the TIAs to be a former condition of which the Veteran currently has no further symptoms. In August 2012, following a review of the claims file, the Director of Compensation and Pension Service issued an opinion that an extraschedular rating under 38 C.F.R. § 3.321(b) for TIA residuals was not warranted. In support of that opinion, the Director noted that there had been no reoccurrence, complications, or symptoms since the Veteran's August 2004 TIAs, and that the Veteran denied recurrence of TIAs during the April 2010 VA examination. The Director found that there was no evidence that the Veteran's TIAs had been symptomatic or that he had been hospitalized for any extended period due to that disability. He concluded that the totality of the evidence did not support that the Veteran's TIA disability was so exception or unusual as to render the use of the regular rating schedule standards impractical. After a review of all of the evidence, the Board finds that the weight of the lay and medical evidence demonstrates that the symptomatology associated with the Veteran's TIA disability is contemplated by the rating schedule, and that an extraschedular rating is not warranted. In this regard, the medical evidence does not reflect any residual disability from the Veteran's August 2004 TIAs nor any TIA recurrences. The lay evidence from the Veteran himself denies any residual disability from the August 2004 TIAs and TIA recurrences. His lay contentions are deemed credible as they are consistent with the evidentiary record. Thus, the 10 percent minimum rating granted from March 1, 2005, adequately contemplates any residual disability (or lack thereof) from the August 2004 TIAs. To the extent that the Veteran experiences symptoms related to his underlying coronary artery disease or hypertension which contributed to his TIAs, he is separately rated for those disabilities. Moreover, because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities. Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc). Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not. Id. (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a Veteran] to [an extraschedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court (citing Maryland v. Wilson, 519 U.S. 408, 412-13). Stated in other terms, an extraschedular rating may not be assigned for the cumulative impact of the underlying service-connected disabilities. In sum, the Board finds that an increased rating in excess of 10 percent is not warranted on an extraschedular basis for TIA residuals. The Veteran has denied residuals following his TIAs in August 2004. Even so, any residual disability is adequately contemplated by the minimum 10 percent rating assigned. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The rating schedule provides for higher ratings where the appropriate type and degree of symptomatology is shown. To the extent that the Veteran argues that he manifests TIA residuals not contemplated in his assigned 10 percent schedular rating, the Board places greater probative weight on the finding of VA physicians as they possess greater training and expertise than the Veteran in evaluating TIA residuals. For these reasons, the Board finds that the weight of the evidence is against a rating in excess of 10 percent for TIA residual disability on an extraschedular basis. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER An extraschedular evaluation in excess of 10 percent for TIA residual disability for the period from March 1, 2005, is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs