Citation Nr: 1329451 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 08-15 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for psychiatric disability, including as secondary to service-connected disabilities. 2. Entitlement to service connection for dementia, including as secondary to service-connected disabilities. 3. Entitlement to an evaluation in excess of 60 percent for arteriosclerotic heart disease. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from July 1957 to December 1977. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2011, the Board remanded the appeal for additional development. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. During the pendency of the claim, the Veteran has been diagnosed with anxiety disorder, not otherwise specified; adjustment disorder with depressed mood; and depressive disorder, not otherwise specified; his variously diagnosed acquired psychiatric disorder is etiologically related to his service-connected disabilities. 2. Dementia has not been present during the pendency of the claim. 3. The Veteran's arteriosclerotic heart disease is manifested by an estimated capability of 1 to 3 metabolic equivalents (METs), and an ejection fraction of 35 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for psychiatric disability, variously diagnosed, as secondary to service-connected disabilities, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.310 (2006). 2. The criteria for service connection for dementia, including as secondary to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. § 3.303 (2013). 3. The criteria for an evaluation of 100 percent for arteriosclerotic heart disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.104, Diagnostic Code 7005 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the psychiatric claim and the rating claim, the record reflects that the Veteran has been provided all required notice. In addition, as explained below, the evidence currently of record is sufficient to substantiate the claims. Therefore, no further development is required before the Board decides this claim. With respect to the dementia claim, the record reflects that the Veteran was provided all required notice in a letter mailed in April 2007, prior to the initial adjudication of the claim. The duty to assist the Veteran has also been satisfied. The originating agency has obtained the Veteran's service treatment records and his pertinent private and VA treatment records. Most recently, the Veteran was provided with Disability Benefits Questionnaire (DBQ) examinations for heart and for mental disorders in December 2012. The DBQ examiners reviewed the Veteran's pertinent medical history, examined the Veteran, and included rationales for the conclusions reached. Accordingly, the Board finds the December 2012 examination reports to be adequate for adjudication purposes. The Veteran has not contended otherwise. The Board's June 2011 remand instructed the originating agency to obtain the Veteran's updated treatment records; and to arrange for the Veteran to be scheduled for examinations to determine (1) the nature and etiology of any current psychiatric disorder found, and (2) the severity of his arteriosclerotic heart disease. The originating agency subsequently obtained updated VA treatment reports from the VA Medical Center in Poplar Bluff, Missouri. It also afforded the Veteran the December 2012 DBQ examinations for heart and for mental disorders. Accordingly, the originating agency has complied with the directives in the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the dementia claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. II. Burdon of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Service Connection Claims Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. "Congress specifically limits entitlement to service- connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Psychiatric Disability A review of the Veteran's claims file reveals that he has been diagnosed with various psychiatric disorders during the pendency of the claim, including anxiety disorder, not otherwise specified; adjustment disorder with depressed mood; and depressive disorder, not otherwise specified. A private physician in August 2006 diagnosed the Veteran with adjustment disorder with depressed mood, and rule out depressive disorder, not otherwise specified. A March 2007 VA psychiatric consultation report concludes with diagnoses of anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified. Most recently, the report of a December 2012 DBQ examination for mental disorders shows that the Veteran was diagnosed with anxiety disorder, not otherwise specified. The evidence of record does not support a finding that any of these current psychiatric disabilities are directly related to the Veteran's active service. With respect to whether service connection is warranted on a secondary basis, the DBQ examiner in December 2012 opined that the Veteran's current psychiatric disorder, diagnosed as anxiety disorder, not otherwise specified, was "related to [the Veteran's] present life circumstances and is less likely as not secondary to his service-connected CVA." Initially, the Board points out that this opinion fails to consider all of the Veteran's service-connected disabilities, and confines itself to his service-connected residuals of cerebral vascular accident. Thus, at first glance, this opinion does not appear to resolve the issue before the Board. Service connection has been established for the following disabilities: loss of use of the upper extremities, rated 100 percent disabling; loss of use of the lower extremities, rated 100 percent disabling; hypertension, rated 10 percent disabling; bilateral hearing loss, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and arteriosclerotic heart disease, status post myocardial infarction, which, pursuant to this decision, will be rated 100 percent disabling. The severity of these disabilities, taken as a whole, clearly have a significant negative effect on the Veteran's "present life circumstances." Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board concludes that the Veteran's current acquired psychiatric disorder, variously diagnosed, is etiologically related to his service-connected disabilities. Dementia Following its review of the record, the Board must conclude that service connection is not warranted for dementia because it has not been present at any time during the period of the claim. The Board acknowledges that the evidence documents a few complaints of memory loss. It also shows that the Veteran was diagnosed with dementia. Specifically, the report of a January 2007 VA examination for mental disorders notes the Veteran's history of having been recently diagnosed with dementia and shows that diagnoses of dementia with depressed mood and rule out depression, not otherwise specified, were rendered on that examination. However, as discussed below, the more probative evidence establishes that dementia has not been present during the period of the claim. An August 2007 VA examination for mental disorders was scheduled after a review of subsequent VA and private psychiatric evaluations in August 2006 and March 2007 failed to make note of a diagnosis of dementia. Based upon a review of the Veteran's claims file, the VA examiner opined that the Veteran was not shown to have any signs or symptoms associated with dementia. As for the dementia findings on the January 2007 VA examination for mental disorders, the VA examiner noted that it was unclear from the examination report as to the basis for this diagnosis. The VA examiner in January 2007 VA examination determined that the Veteran's memory was grossly intact, that his attention and concentration were fair, that his speech and organization of thought were coherent and goal directed, and that there was no mention of cognitive disturbances. Finally, the VA examiner cited the lack of any signs or symptoms associated with dementia in the subsequent examinations as well. More recently, the Veteran underwent a DBQ examination for mental disorders in December 2012. Based upon the Veteran's outward presentation, his performance of the Folstein MMSE, and his responses to additional questions to assess his cognitive functioning, the DBQ examiner concluded that the Veteran did not meet the criteria for a diagnosis of dementia. Thus, while the January 2007 examiner diagnosed dementia, the August 2007 examiner pointed out and explained why the diagnosis was not properly supported. The August 2007 and December 2012 examiners both determined that the Veteran did not meet the criteria for a diagnosis of dementia. Moreover, the pertinent treatment records do not establish a diagnosis of dementia. In sum, the preponderance of the evidence establishes that dementia has not been present during the pendency of the claim. The Board acknowledges the Veteran's complaints of memory loss. However, whether the memory loss is due to dementia or another disorder is a medical question that the Veteran is not competent to answer. As explained above, the medical evidence shows that his memory loss is not due to dementia. Accordingly, the Board must conclude that service connection is not warranted for dementia. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. IV. Rating Claim Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). Arteriosclerotic heart disease warrants a 60 percent rating if there is more than one episode of acute congestive heart failure in the past year; or when there is a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure; when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow, that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In August 2010, the RO issued a rating decision which granted an increased evaluation of 60 percent for effective August 21, 2006. The Veteran timely appealed this decision seeking an increased initial evaluation. In December 2012, a DBQ examination for heart disabilities was conducted. The examination reports include a historical summary of the Veteran's heart disability, including two prior myocardial infarctions in 1975 and 1995, and a prior stroke. Physical examination revealed normal heart sounds, a blood pressure of 136/68, and trace peripheral edema in both lower extremities. An echocardiogram was conducted and revealed evidence of cardiac hypertrophy, and a left ventricular ejection fraction of 35 percent. The examination report lists diagnoses of acute, subacute, or old myocardial infarction; artherosclerotic cardiovascular disease; coronary artery disease; and hypertensive heart disease. The DBQ examiner noted that the Veteran was unable to walk more than a few steps due to his other comorbid disabilities, and that METs exercise testing could not be performed. The DBQ examiner then reported that the estimated METs level on the Veteran's most recent interview- based METs test was 1-3 METs, which was consistent with activities such as eating, dressing, taking a shower, and slow walking (2 miles per hour) for one to two blocks. The examination report indicates that this METs level limitation was due solely to the Veteran's heart conditions; and that the Veteran did not have other non-cardiac medical conditions limiting his METs level. The report also notes that the Veteran would be unable to perform any type of physical labor solely due to his heart disability, and that he had extremely limited heart function. The DBQ examiner stated, "[t]aken in isolation, the Veteran's cardiac disease would result in a METs of 3-5." Prior to this examination, the Veteran had not been provided a full cardiac work-up in response to his current claim for an increased evaluation. A December 2006 VA general medical examination did not include a full cardiac work up. In March 2007, a VA physician submitted a statement indicating that the Veteran had an estimated METs level of 5.0. However, as noted in the Board's June 2011 remand, the December 2006 VA examination report and March 2007 VA treatment statement are inadequate for current rating purposes. After a longitudinal review of the entire record, the Board concludes that the Veteran's arteriosclerotic heart disease meets the criteria for a 100 percent rating throughout the period of the claim. The DBQ examiner in December 2012 reported that the Veteran's heart exhibited an estimated METs level of 1 to 3. In support of this finding, the DBQ examiner indicated that the METs level limitation was due solely to the Veteran's heart conditions; and that the Veteran did not have other non-cardiac medical conditions limiting the METs level. This finding supports a 100 percent rating under Diagnostic Code 7005. Although the DBQ examiner stated that the Veteran's cardiac disease, "[t]aken in isolation," would result in a METs of 3-5, further explanation of this discrepancy is not required. The low end of this range, 3 METs, meets the requirement for a 100 percent, and the examiner had previously stated that that the MET level limit due to the Veteran's heart conditions was estimated to be in the 1-3 range. Accordingly, a rating of 100 percent for the Veteran's service-connected arteriosclerotic heart disease is warranted throughout the period of the claim. ORDER Entitlement to service connection for dementia, including as secondary to service-connected disabilities, is denied. Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed, is granted. Entitlement to a 100 percent rating for arteriosclerotic heart disease throughout the period of the claim is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs