Citation Nr: 1335249 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 11-23 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to effective date prior to March 1, 2011, for the grant of service connection for erectile dysfunction and the award of special monthly compensation due to loss of use of a creative organ under 38 U.S.C.A. § 1114(k). 2. Entitlement to a higher initial evaluation for coronary artery disease, currently evaluated as 10 percent disabling prior to May 26, 2010, and as 30 percent disabling from that date. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from March 1969 to January 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2010 and July 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In September 2012, the Board remanded the issues then on appeal to the RO to obtain any additional medical records from the Connecticut VA Medical Center, afford the Veteran an examination to determine whether his psychiatric disorder is related to service, and afford the Veteran an examination to determine the severity of his coronary artery disease. The RO obtained the requested records and afforded the Veteran examinations in March 2013, and a review of the examination reports reflects that they are substantially responsive to the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). In a May 2013 rating decision, the RO granted service connection for a psychiatric disorder, characterized as posttraumatic stress disorder with mood disorder and alcohol dependence. Thus, that issue is no longer on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. VA received the Veteran's original claim for service connection for erectile dysfunction, as secondary to his service-connected coronary artery disease, on March 1, 2011. 2. Prior to May 26, 2010, the Veteran's coronary artery disease had not been manifested by a workload of greater than 5 METs but not greater than 7 METs which resulted in dyspnea, fatigue, angina, dizziness, or syncope; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray was also not shown. 3. At no time during the time frame on appeal was the Veteran's coronary artery disease manifested by chronic or more than one episode of acute congestive heart failure in the past year; a workload of 3 METs or less or greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent or between 30 to 50 percent. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 1, 2011, for the grant of service connection for erectile dysfunction and the award of special monthly compensation due to loss of use of a creative organ under 38 U.S.C.A. § 1114(k) have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400 (2013). 2. The criteria for a higher initial evaluation for coronary artery disease, currently evaluated as 10 percent disabling prior to May 26, 2010, and as 30 percent disabling from that date, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7005 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claims arise from an appeal of the initial evaluation and effective date following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, no further notice is needed. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, and post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. VA provided the Veteran with an examination in March 2013 to determine the nature and severity of his heart disability. 38 C.F.R. § 3.159(c)(4) (2013). When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination report to be thorough and adequate upon which to base a decision on the claim. The examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to evaluate the disability under the applicable rating criteria. The Board thus finds that no further notice or assistance is required to fulfill VA's duty to assist. 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). Effective Date Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2013). The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)-(b)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400(b)(2) (2013). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2013). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155 (2013). VA received the Veteran's original claim for service connection for erectile dysfunction on March 1, 2011. There is no correspondence received prior to that date that indicates an intent to apply for VA benefits for erectile dysfunction. In the correspondence that was construed as his claim, a copy of a printout of an electronic mail written to his representative at the time, the Veteran stated, "I don't think we have filed the secondary to heart stuff... erectile dysfunction." Thus, the Veteran had previously acknowledged not filing an earlier claim. Moreover, he did not file his claim for service connection for the underlying heart disease until May 2010. Thus, for the foregoing reasons, March 1, 2011, is the proper effective date for the grant of service connection for erectile dysfunction and the award of special monthly compensation due to loss of use of a creative organ under 38 U.S.C.A. § 1114(k), as that is the date of the claim, which was received more than one year following separation from service. The Board notes the Veteran's assertion that a 2000 VA treatment note should be construed as an informal claim. In that regard, a January 26, 2000, primary care note reflects that he was to restart his medication for coronary artery disease with the understanding of the side effect of impotence. Then, an April 4, 2000, pain management note reflects complaints of difficulty maintaining an erection at times and a request to see an urologist. A May 9, 2000, genitourinary clinic note reflects an evaluation for erectile dysfunction and a plan to start Viagra pending cardiology clearance. However, none of these notes indicates an intent on the part of the Veteran to apply for VA benefits for erectile dysfunction. Likewise, although subsequent treatment notes also contain complaints of erectile dysfunction, they too do not indicate an intent on the part of the Veteran to apply for VA benefits for the disorder. Thus, an earlier effective date is not warranted under 38 C.F.R. § 3.155. The Board is sympathetic to the Veteran's situation. However, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Thus, the Board finds that March 1, 2011, is the proper effective date for the grant of service connection for erectile dysfunction and the award of special monthly compensation due to loss of use of a creative organ under 38 U.S.C.A. § 1114(k). See 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2013). As there is no legal basis for the assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the claim must be denied. Initial Rating 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 resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). But see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When the veteran has disagreed with the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged" ratings (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. The Veteran's coronary artery disease has been evaluated under Diagnostic Code 7005. 38 C.F.R. § 4.104 (2013). His disability has been evaluated as 10 percent disabling prior to May 26, 2010, and 30 percent disabling from that date. The Board notes that May 26, 2010, is the date VA received the Veteran's claim but a more favorable earlier effective date of May 30, 2002, has been assigned pursuant to caselaw. Thus, the Board will consider the evaluation of the Veteran's coronary artery disease since May 30, 2002. Under Diagnostic Code 7005, a workload of greater than 7 METs (metabolic equivalents) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or requiring continuous medication warrants a 10 percent rating. A workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray warrants a 30 percent rating. More than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent warrants a 60 percent rating. Chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent warrants a 100 percent rating. VA medical records show that the Veteran is being treated for his coronary artery disease with medication. A February 2002 VA stress exercise echocardiogram was reportedly normal. A November 2003 VA treatment note reflects a METs of 12.9 on an exercise test that was stopped due to fatigue with no electrocardiogram changes, a normal echocardiogram, and a normal ejection fraction. A March 2004 VA treatment note reflects that he was exercising four to five times per week and denied chest pain, orthopnea, paroxysmal nocturnal dyspnea, cough, and dyspnea. An April 2004 VA treatment note reflects complaints of chest pain but that cardiac catheterization was considered normal. He reportedly continued to exercise on the treadmill three times per week at 3.7 miles per hour for 25 minutes and then running at 5.7 miles per hour for 2.5 minutes, with no chest pain or pressure. The examiner stated that the Veteran was "doing very well without any angina at a good workload." A January 2006 VA treatment note reflects that the Veteran continued to exercise three times per week for 1.5 miles and had a normal stress test in June 2005. A December 2006 VA treatment note reflects complaints of occasional chest pain once every few weeks over the past six months not increasing in frequency and occurring with stress and fatigue but not with running on a treadmill at the gym, which he did three times per week for 1.5 miles. He denied any dyspnea, palpitations, sweating, and dizziness. He reported lying down to stop the pain. The examiner noted that the Veteran had chest pain with typical and atypical features, with no evidence of congestive heart failure, but with accelerating symptoms. A January 2007 VA treatment note reflects that a myocardial adenosine perfusion imaging study was normal with normal left ventricular wall motion and a normal left ventricular ejection fraction. Given the above, with respect to the period prior to May 26, 2010, the Veteran's coronary artery disease had not been manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A February 2002 echocardiogram was normal. In November 2003, he demonstrated a METs of 12.9 on an exercise test with no electrocardiogram changes and a normal echocardiogram and ejection fraction. In April 2004, a cardiac catheterization was normal and, based on the Veteran's report of exercising on a treadmill, the examiner stated that the Veteran was "doing very well without any angina at a good workload." In June 2005, he had a normal stress test. In January 2007, he was found to have a normal left ventricular wall motion and normal left ventricular ejection fraction. The evidence also shows that he was exercising regularly on a treadmill. Thus, an initial evaluation higher than 10 percent prior to May 26, 2010, for coronary artery disease is not warranted under Diagnostic Code 7005. During an August 2010 VA examination, the Veteran denied any chest pain, orthopnea, paroxysmal nocturnal dyspnea, cough, and dyspnea. He also denied any functional impairment. A March 2011 VA treatment note reflects that he went to the gym two times per week for 1.5 miles on a flat treadmill at 3.6 miles per hour and then increases it to a run for a few minutes but that he could not do the running portion anymore because it hurt his low back. He complained of chest pain episodes of increasing frequency. He reported having no problems shoveling snow the past winter but having chest pain the following day. He denied chest pain with climbing stairs. He reported he was working. A November 2011 VA treatment note reflects that he underwent elective left heart catheterization which found nonobstructive coronary artery disease. A June 2012 VA treatment note reflects that he denied orthopnea, paroxysmal nocturnal dyspnea, cough, and dyspnea. A March 2013 VA examination report reflects that he has coronary artery disease requiring continuous medication but does not have congestive heart failure. The examiner indicated that exercise METs testing was not required as part of the Veteran's treatment plan and, based on the Veteran's responses, indicated that the Veteran's heart disability was reflective of a workload of greater than 5 METs but not greater than 7 METs resulting in fatigue and angina. The examiner indicated that there was no evidence of cardiac hypertrophy or dilatation on electrocardiogram, chest x-ray, or adenosine perfusion imaging. The examiner noted that January 2007 testing found a left ventricular ejection fraction of 57 percent and that the available medical information sufficiently reflected the severity of the Veteran's heart disability. The examiner indicated that the Veteran's coronary artery disease did not impact his ability to work. The examiner noted that the Veteran had three stents and was no longer followed with conventional exercise stress testing, and myocardial perfusion imaging would also not be of any benefit. The examiner noted that the Veteran underwent cardiac catheterization which revealed non-critical coronary artery disease and recommendations were to continue medical management, indicating no change and no additional coronary artery disease or atherosclerosis. The examiner commented that there was no medical evidence to indicate that the Veteran suffered from congestive heart failure, either now, during the previous year, or ever. The examiner also commented that there was no medical evidence to indicate that the Veteran suffered from left ventricular dysfunction, noting that additional testing was not indicated and the current ejection fraction completed in 2007 is 57 percent. The examiner concluded that the Veteran was able to perform all activities of daily living and all sedentary and physical work tasks unless otherwise noted. Given the above, with respect to the entire period on appeal, the Veteran's coronary artery disease has not been manifested at any time by chronic or more than one episode of acute congestive heart failure in the past year; a workload of less than 3 METs or greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent or between 30 to 50 percent. In August 2010, he denied any functional impairment due to his coronary artery disease. In March 2011, he reported that he could not run anymore, but attributed that to his low back. He reported no problems shoveling snow and no chest pain with climbing stairs. In November 2011, left heart catheterization found nonobstructive coronary artery disease. Lastly, a March 2013 VA examination report reflects that his coronary artery disease was reflective of a workload of greater than 5 METs but not greater than 7 METs resulting in fatigue and angina. The examiner indicated that there was no evidence of cardiac hypertrophy or dilatation on electrocardiogram, chest x-ray, or adenosine perfusion imaging. The examiner indicated that the January 2007 left ventricular ejection fraction of 57 percent reflected the severity of the Veteran's coronary artery disease and there was no medical evidence that the Veteran had left ventricular dysfunction. The examiner also stated that there was no medical evidence that the Veteran has ever had congestive heart failure. Thus, at no point during the time frame on appeal is an evaluation higher than 30 percent warranted for coronary artery disease under Diagnostic Code 7005. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation for the Veteran's coronary artery disease. However, after review, the Board finds that no other diagnostic code provides for a higher rating at any time during the rating period. In conclusion, a higher initial evaluation for coronary artery disease, currently evaluated as 10 percent disabling prior to May 26, 2010, and as 30 percent disabling from that date, is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional Considerations The Board must determine whether the schedular evaluation is inadequate, thus requiring a referral of the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluations are adequate. Evaluations in excess of those assigned are provided for certain manifestations of the Veteran's coronary artery disease, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, due to his coronary artery disease. Moreover, VA treatment notes show that he is working. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An effective date prior to March 1, 2011, for the grant of service connection for erectile dysfunction and the award of special monthly compensation due to loss of use of a creative organ under 38 U.S.C.A. § 1114(k) is denied. A higher initial evaluation for coronary artery disease, currently evaluated as 10 percent disabling prior to May 26, 2010, and as 30 percent disabling from that date, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs