Citation Nr: 1338312 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 03-02 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a disability manifested by dizziness or vertigo, to include an underlying vestibular disorder, to include as secondary to service-connected hearing loss and/or tinnitus. 2. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of misdiagnosis and treatment as gout, to include rejected kidney transplant and the subsequent need for dialysis, as a result of VA treatment or care in 2008. 3. Entitlement to an initial rating for coronary artery disease status post myocardial infarction (cardiac disability) in excess of 10 percent from May 1, 2003, to April 1, 2007, and in excess of 60 percent for the period from April 2, 2007, forward. 4. Entitlement to an effective date prior to January 26, 2003, for the grant of service connection for a cardiac disability. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to February 1969. This matter 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 Reno, Nevada. The Veteran's attorney withdrew his request for a Board hearing of any type in a January 2012 statement. See 38 C.F.R. § 20.704(e) (2013). Although many documents have been added to the claims file since the last adjudications of the issues on appeal by the RO in early 2012, they consist of arguments concerning the prior evidence of record. As such, a supplemental statement of the case is not necessary. See 38 C.F.R. §§ 20.800, 20.1304(c). The issue of entitlement to service connection for disability manifested by dizziness or vertigo was previously before the Board on several occasions, on appeal from a January 2003 rating decision. The Board remanded the claim for development in March 2005, and denied the claim on the merits in a November 2006 decision. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), which vacated and remanded the November 2006 decision in a February 2008 Order pursuant to a Joint Motion for Remand. In July 2008, the Board again remanded this issue to effectuate the directives of the Joint Motion for Remand. Most recently, in February 2010, the Board again remanded this issue for development. This issue now returns for further Board review, and it is ready for adjudication. After the last Board remand, the Veteran perfected appeals as to additional issues as listed on the first page of this decision. In a September 2009 rating decision, the RO denied compensation pursuant to 38 U.S.C.A. § 1151 (West 2002) for residuals of misdiagnosis and treatment as gout. The Veteran appealed from this determination, a statement of the case was issued in March 2011, and a substantive appeal was received in May 2011. Further development is necessary for this issue. Additionally, in a March 2011 rating decision, the RO granted service connection for a cardiac disability pursuant to a Nehmer review based on the Veteran's active service in the Republic of Vietnam and pertinent regulatory changes. The RO assigned an effective date of January 18, 2005, with an initial rating of 10 percent and a rating of 60 percent effective as of April 2, 2007. In a May 2011 notice of disagreement, the Veteran disputed the initial rating assigned for this disability. The RO then issued a rating decision and statement of the case, both dated in January 2012, which granted a higher rating of 100 percent for the cardiac disability effective from January 26, 2003; assigned a rating of 10 percent effective from May 1, 2003, through April 1, 2007; and continued the rating of 60 percent effective from April 2, 2007. As such, the RO first assigned an effective date of January 26, 2003, for the grant of service connection for cardiac disability in the January 2012 rating decision (and statement of the case). The RO also denied a higher initial rating for the periods that had been rated as 10 and 60 percent disabling at that time. In March 2012, the Veteran's attorney submitted both a notice of disagreement and a substantive appeal (in lieu of VA Form 9) as to both the ratings assigned and the effective date of January 26, 2003, for the cardiac disability. The request for a higher rating proceeds from the initial rating decision, despite the grant of a partial increase during the pendency of the appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, this issue has been perfected for appellate review by the Board. No further development is necessary as to this issue, and it is ready for adjudication. In contrast, the Veteran had not previously disputed the effective date assigned for the cardiac disability. Rather, the RO first assigned an earlier effective date of January 26, 2003, in the January 2012 rating decision, pursuant to review associated with the initial rating appeal. Further, the notice of disagreement received in March 2012, within one year of the initial assignment of this effective date, was timely as to this issue. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302 (concerning timeliness of notice of disagreement and appeal); cf. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006) (forbidding freestanding claims for earlier effective date). Although the RO discussed why an effective date prior to January 26, 2003, was not awarded in the statement of the case dated January 2012, this was before the notice of disagreement was received for this issue. Therefore, a statement of the case is necessary as to this issue to satisfy due process requirements. Accordingly, the issues of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of misdiagnosis and treatment of gout, and entitlement to an effective date prior to January 26, 2003, for the grant of service connection for a cardiac disability are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran currently has vertigo, with symptoms including dizziness and chronic imbalance that first manifested during service, and the current vertigo has been medically linked to service or to his hearing loss. 2. From May 1, 2003, to April 1, 2007, the Veteran's cardiac disability required continuous medications for control; with no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray; no dyspnea, fatigue, angina, dizziness or syncope with workload of 7 METs or lower due to the cardiac disability; ejection fraction of more than 50 percent; and no congestive heart failure. 3. From April 2, 2007, forward, the Veteran's cardiac disability has manifested by left ventricular dysfunction with ejection fraction of greater than 30 percent; no dyspnea, fatigue, angina, dizziness or syncope due to the cardiac disability with workload of 3 METs or lower; and no chronic congestive heart failure. CONCLUSIONS OF LAW 1. The criteria for service connection for vertigo with dizziness and chronic imbalance have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 2. The criteria for an initial rating for cardiac disability in excess of 10 percent from May 1, 2003, to April 1, 2007, and in excess of 60 percent from April 2, 2007, forward have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7005 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to notify and assist claimants in substantiating a claim. 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). Proper notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). The notice requirements apply to all elements of a service-connection claim, including the degree of disability and the effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). VCAA notice should be provided prior to an initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the service connection claim for disability manifested by dizziness or vertigo, the Board's decision herein constitutes a full grant of the benefit sought on appeal. Therefore, no further action is necessary under the VCAA. Concerning a rating for cardiac disability, the Veteran's claim arises from the initial ratings assigned following the grant of service connection for such disability in a March 2011 rating decision. 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. In such cases, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to downstream issues, including the disability evaluation. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was provided adequate notice, including as to the evidence and information necessary to establish a disability rating, in a December 2010 letter. There is no allegation of prejudice concerning notice as to the downstream element of a higher initial rating, and no further notice is necessary. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and obtaining a medical examination and opinion when necessary for a fair adjudication. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has received adequate assistance in this case. The RO obtained all identified, available treatment records, as well as records associated with the Veteran's disability benefits from the Social Security Administration (SSA). Records in the paper claims file and the paperless Virtual VA system have been reviewed and considered. The Veteran was also provided several VA examinations to determine the nature and severity of the Veteran's cardiac disability. With regard to treatment records, the RO made a formal finding in August 2009 that records from the Dallas VA facility dated from 1998 to 2007 were unavailable, based on a negative response from that facility. The Veteran's attorney has argued that this means that there is insufficient evidence to determine the severity of his cardiac disability prior to April 2007, and that a remand is necessary to obtain a retroactive medical opinion to this effect. The Veteran indicated in a July 2009 statement that he received treatment at the Dallas and Las Vegas VA facilities from 1998 to the present. Private records indicate, however, that he moved to Las Vegas in approximately 1998 and continued to live there throughout this time. See July 2000 and October 2008 records from Sunrise Hospital (indicating that the lived in Las Vegas and his daughters lived in Texas). As such, it appears that the majority of his treatment was in the Las Vegas area. Further, the evidence includes VA treatment records from the Dallas, Las Vegas, and Houston VA facilities dated from February 1998 through 2012, including numerous records from 1998 through 2007. There are also private treatment records from several facilities dated in 2000, 2002 to 2004, 2008, 2009, and 2011. There is no argument or indication that the VA examinations are otherwise inadequate, and there is sufficient evidence to determine the severity of the Veteran's cardiac disability throughout the period on appeal. In sum, a remand for further notice or development would serve no useful purpose as to the claims decided herein, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist at every stage in this case, at least insofar as any errors were not harmful to the essential fairness of the proceedings. Therefore, the Veteran will not be prejudiced by a decision on the merits of these claims. II. Analysis Service connection The Veteran contends that he is entitled to service connection for a disability manifested by dizziness or vertigo, to include a vestibular disorder. He asserts that the condition originated in service or, alternatively, is related to his service-connected tinnitus or hearing loss as a result of in-service noise exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including organic disease of the nervous system, will be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent within one year after separation from service, even if there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112(a), 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Where a condition is noted during service (or within the applicable presumptive period) but is not chronic, there must be evidence of continuity of symptomatology after service. 38 C.F.R. § 3.303(b). Service connection generally requires competent and credible of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board first finds that there is a current disability of vertigo. The Veteran underwent testing including audiogram, auditory brain stem response (ABR) testing, tympanograms, electronystagmography (ENG), and MRIs in 2002 and 2009 to determine the cause of his complaints of dizziness and chronic imbalance or unsteadiness. In a December 2002 addendum, a VA examiner diagnosed vertigo based on ENG and MRI results. In an April 2009 report, another VA examiner diagnosed both benign positional vertigo and possible vertigo of central origin, based on the results of an audiogram, ABR testing, tympanograms, and an ENG. In particular, the ENG showed defective ocular motor testing, which the examiner stated may be more suggestive of central nervous system disorder. There was also a positive Dix-Hallpike test on the left, which the examiner stated is indicative of benign positional vertigo, which is a peripheral problem. The evidence also establishes an in-service event or symptoms. In particular, the Veteran had acoustic trauma from artillery and weapons during service in Vietnam, and he states that he was exposed to blast explosions as well. He has already been granted service connection for hearing loss and tinnitus based on such exposure and a diagnosis of hearing loss in service. Additionally, the Veteran complained of dizziness at a March 1968 periodic examination during service, although only bilateral high frequency hearing loss was diagnosed at that time. Resolving doubt in the Veteran's favor, the Board finds that he has had continuous symptoms since service. In particular, his reports of having symptoms of dizziness, feeling off balance, or feeling unsteady while walking since service have been relatively consistent throughout the appeal. See, e.g., VA examinations in May 2001, August 2002, and March 2009; statements in May 2005 and November 2008. Although there was only one notation of dizziness in his service records, the Veteran stated in May 2005 that he had balance difficulties on more than one instance in service, along with severe ringing in the ears. He is competent to report this fact, as it is observable with his own senses. See Barr, 21 Vet. App. at 307; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, this report is generally consistent with his complaint of dizziness during the 1968 periodic examination, although there was no further explanation as to the frequency of occurrence. During the March 2009 VA examination, the Veteran clarified that he had experienced dizziness since 1967 or 1968 and that his chronic imbalance began 15-20 years ago, got better, and then became chronic again 6-7 years prior to the examination. He described his chronic imbalance as a spinning sensation 2-3 times a day that lasts for 10-45 seconds. The Board acknowledges that medical records, examinations, and communications dated from 1980 to 1983 concerning prior claims do not include complaints of dizziness or balance problems. Instead, the Veteran described hearing difficulties and ringing in the ears and stated that he had been told he had neurological damage in the ears. He also indicated in 1981 that he was treated for fluid around his eardrums. During a July 1991 VA audiological examination, the Veteran reported having dizziness at times and that he was being evaluated for this. In reports dated in August 2005, March 2009, April 2010, and December 2011, a VA examiner stated that it was impossible to say when the Veteran's dizziness or vertigo actually started, and the evidence seemed to indicate that his symptoms did not start in 1968 or 1969. The examiner primarily relied on the lack of prior documented complaints of such symptoms other than in March 1968 and in July 1991 in coming to this conclusion. Nevertheless, the absence of evidence is not negative evidence, and the Veteran's lay reports of persistent and recurrent symptoms must also be considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran is competent to report observable symptoms such as dizziness and a feeling of unsteadiness, and there is no indication that he affirmatively denied any such symptoms between 1968 and 1991. Rather, the Veteran stated in May 2005 that he associated his symptoms of dizziness and balance difficulties with extreme heat and humidity during service, and then with high blood pressure and other medical conditions, without ever knowing their true cause. In a November 2008 statement, he indicated that he had complained to military and VA providers of problems walking crooked and equilibrium since the 1960s, but they always just checked his hearing. Accordingly, the competent and credible evidence establishes that the Veteran has had persistent symptoms of dizziness since service. Finally, the Veteran's currently diagnosed vertigo has been medically linked to his symptoms of dizziness during service and since that time, or to his hearing disabilities. The May 2001 VA examiner opined that the Veteran's reports of unsteadiness while walking since about 1969 appeared to have occurred at the same time as his hearing loss. He diagnosed asymmetric bilateral hearing loss, tinnitus, and unspecified labyrinthine dysfunction, and stated that etiologies for these conditions would "certainly include cochlear and retrocochlear pathologies." Similarly, in an August 2005 addendum, another VA examiner stated that, if the Veteran's disequilibrium started at the same time as his hearing loss and tinnitus in the late 1960s, then a case could be made that they are related. Although this same examiner opined in that report and in later reports that he could not resolve the question of etiology of the Veteran's vertigo without resorting to speculation, these conclusions are inadequate, as they were all based on a finding that the Veteran did not have continuous symptoms since service, which the Board has rejected. In sum, applying the benefit-of-the-doubt doctrine, the evidence establishes a current disability of vertigo, with persistent and recurring symptoms including dizziness that have been present since service and around the same time as the Veteran's hearing loss first began. Further, the current disability has been linked to the complaints since service, or to his hearing loss. As such, service connection is warranted for vertigo. 38 C.F.R. §§ 3.102, 3.303, 3.310. Rating for cardiac disability VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology or manifestations of the conditions is not duplicative or overlapping. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). The Veteran was assigned a 100 percent rating for his cardiac disability effective as of January 26, 2003, the date on which he suffered a myocardial infarction, and for three months after that time, as indicated by 38 C.F.R. § 4.104, Diagnostic Code (DC) 7006. This is the maximum benefit and, therefore, that period is not on appeal. The Veteran's cardiac disability is assigned a rating of 10 percent effective from May 1, 2003, through April 1, 2007; and a rating of 60 percent effective from April 2, 2007, forward. This rating is assigned under DC 7005, which has the same criteria as DC 7006 for three months or more status post myocardial infarction. Cardiac disabilities are rated, in part, on symptomatology at certain levels of METs. One MET (metabolic equivalent) 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. 38 C.F.R. § 4.104, Note 2. Under DC 7005, a 10 percent rating will be assigned for coronary artery disease where a workload of greater than 7 METs results in dyspnea, fatigue, angina, dizziness or syncope; or, continuous medication is required. A 30 percent rating will be assigned where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness or syncope; or there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray. A 60 percent rating will be assigned where there is 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 results in dyspnea, fatigue, angina, dizziness, or syncope; or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent disability rating is warranted where there is chronic congestive heart failure; or a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or there is a left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. For the period from May 1, 2003, to April 1, 2007, the Veteran required continuous medication to control his cardiac disability status post myocardial infarction. There was no evidence, however, of dyspnea, fatigue, angina, dizziness, or syncope with any workload due to his cardiac disability. There was also no cardiac hypertrophy or dilatation shown by electrocardiogram, echocardiogram, or x-ray; ejection fraction of 50 percent or less; or congestive heart failure during this period. Although the Veteran complained of dyspnea (or shortness of breath) and fatigue prior to April 2, 2007, these symptoms were repeatedly noted to be due to his advanced chronic kidney disease with renal failure, status post renal transplant in 2001. Additionally, the Veteran's complaints of dizziness or vertigo have not been related to his cardiac disability but, rather, were noted to be due to other causes and essentially present since service, as discussed above. Indeed, in a February 2006 VA cardiology consult, the Veteran reported that he was "doing very well" except for occasional twinges in the chest, and he was noted to deny any shortness of breath or significant cardiac symptomatology. He also reported having a treadmill test about a year earlier that was normal, with no evidence of myocardial ischemia. The Board notes that complaints of fatigue and chest pain were determined to be related to the Veteran's advanced kidney disease and renal failure in July 2000 and September 2000, after multiple studies to rule out cardiac etiology, and the Veteran was cleared from a cardiac standpoint at that time. Further, VA treatment records from 2001 forward, after the Veteran's kidney transplant, showed medications for hypertension and to prevent a heart attack status post renal transplant, but there was no cardiac diagnosis until the Veteran's January 2003 myocardial infarction. The Veteran and his representative are not competent as lay witnesses to offer an opinion as to whether any symptoms of fatigue, shortness of breath, dizziness, etc. were due to his cardiac disability. Rather, this question requires medical training, knowledge or experience, due to the complex nature of the involved systems, especially given the Veteran's multiple other disabilities and medical conditions. See Barr, 21 Vet. App. at 307-08; Jandreau, 492 F.3d at 1377. For the foregoing reasons, a rating in excess of 10 percent is not warranted for the Veteran's cardiac disability prior to April 2, 2007. See 38 C.F.R. § 4.104, DC 7005. In contrast, medical evidence as of April 2, 2007, showed an ejection fraction of 44 percent via stress test, or ejection fraction of 57 percent via echocardiogram. Thereafter, private records dated in December 2008 showed an ejection fraction measured as 40-45 percent in an echocardiogram, and 46 percent in a stress test. A May 2010 VA cardiology consult recorded no signs of heart failure, and the Veteran denied any chest pain or shortness of breath. An echocardiogram that same month showed normal left ventricular size with mild systolic dysfunction and calculated left ventricular ejection fraction of 40 percent. This was noted to be a significant decrease in the ejection fraction from 57 percent to 40 percent as compared to the April 2007 study. The December 2010 VA examiner again found no evidence of congestive heart failure. The Veteran was noted to have dyspnea and fatigue with MET level of greater than 3-5, which the examiner stated was consistent with activities such as light yard work, mowing the lawn, and brisk walking. In light of the above, the Veteran's cardiac disability showed a factually ascertainable increase in severity as of April 2, 2007. His ejection fraction has been measured as between 30 and 50 percent since that time, and he was also noted to have dyspnea and fatigue with a MET level of greater than 3 but not greater than 5 during the December 2010 VA examination. Nevertheless, a rating in excess of 60 percent is not warranted for this period because there was no evidence of chronic congestive heart failure, cardiac symptoms with a workload of 3 METs or less, or ejection fraction of less than 30 percent. See id. Again, the majority of the Veteran's symptoms of dyspnea, fatigue, or dizziness have been related to his advanced kidney disease and vertigo, not to his cardiac disability. In summary, the Veteran is not entitled to a rating in excess of the currently assigned rating for his cardiac disability. All potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Although staged ratings were assigned by the RO, further staging is not warranted, as the Veteran's symptomatology remained relatively stable during the various periods on appeal. Any increases in severity were not sufficient for a higher rating as discussed above. See Fenderson, 12 Vet. App. at 126-127. The Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). In this regard, the Veteran's cardiac disability required continuous medication and resulted in varying degrees of dyspnea or fatigue and decreased ejection fraction during certain periods as discussed above. Such symptomatology is fully contemplated by the schedular rating criteria. Therefore, the rating schedule is adequate, and it is not an exceptional or unusual disability picture. Referral for consideration of an extra-schedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008) (discussing the three-pronged analysis as to whether extra-schedular referral is necessary under § 3.321). The Veteran was granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in the June 2012 rating decision. This is not currently before the Board and need not be further addressed at this time. The preponderance of the evidence is against a rating in excess of the currently assigned staged rating for the Veteran's cardiac disability. As such, the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied. 38 C.F.R. § 4.3. ORDER Service connection for vertigo with dizziness and chronic imbalance is granted. An initial rating for coronary artery disease status post myocardial infarction in excess of 10 percent from May 1, 2003, to April 1, 2007, and in excess of 60 percent from April 2, 2007, forward, is denied. REMAND As discussed above, the Veteran first disputed the effective date of January 26, 2003, for the grant of service connection for his cardiac disability in March 2012, after the January 2012 rating decision that assigned this effective date. A statement of the case (SOC) was not thereafter provided with respect to this issue. Therefore, the Board has no discretion, and this issue must be remanded for this purpose. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). This issue will be returned to the Board for further consideration only if the Veteran files a timely substantive appeal after issuance of the SOC. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). With respect to the claim for compensation pursuant to 38 U.S.C.A. § 1151, the Veteran asserts that he has residuals of misdiagnosis and treatment as gout as a result of VA treatment or care in 2008. Essentially, he contends that he was doing well status post kidney transplant in 2001, but he went into septic shock and his kidney transplant was rejected, with the need for subsequent dialysis and a decrease in general health, because VA providers incorrectly diagnosed and treated his complaints in the lower legs as gout instead of bacterial or viral infection. Further development is necessary to determine whether the Veteran actually developed additional disability, to include rejected kidney transplant and the need for dialysis, as a result of VA care or treatment in 2008. If additional disability is found, further development is needed as to the question of fault on the part of VA. Specifically, for the purposes of compensation under 38 U.S.C.A. § 1151, the evidence must show that VA's care or treatment actually caused additional disability. Merely showing that the Veteran received VA care or treatment and subsequently had additional disability does not establish causation. Such care or treatment cannot cause the continuance or natural progress of a disease or injury unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused its continuance or natural progress. Further, additional disability caused by the Veteran's failure to follow properly given medical instruction is not caused by VA care or treatment. 38 C.F.R. § 3.361(c). Here, the lay and medical evidence generally reflects that the Veteran had a kidney transplant in 2001, and he was doing relatively well after that time. There had been some prior complaints of pain in the lower legs, including in March 2008, when he complained of pain in the right leg, which he reported had started about two years ago and may have been shortly after he had leg swelling from venous thrombosis. Nevertheless, a September 3, 2008, VA nephrology record notes that the Veteran felt well since his last visit. He was noted to have chronic kidney disease with stable renal function, and seemed to be doing well on the current medical regimen. The Veteran sought VA treatment on September 29 and 30, 2008, (with entry of the note on October 1, 2008), for complaints of lightheadedness and severe pain with some swelling in the left lower leg, mostly in the knee. The claims file includes nursing notes and physician notes for primary care on September 29 and for rheumatology on September 30, as well as a notation of phone calls to the Veteran concerning test results on September 29, 2008. On September 29, the Veteran reported an onset of 7 months, with a duration of one week for the current episode. He reported being seen at a private emergency room two days earlier, and that an ultrasound had ruled out deep vein thrombosis (DVT). He stated that he had been told in the past that he might have gout. The primary care provider assessed joint pain and possible gout, and he was scheduled for a rheumatology consult and labs. A subsequent September 29, 2008, VA phone note indicates that the Veteran was contacted for an INR result of 4.4 based on recent Prothrombin Time (ProTime) blood test, which was noted to be "supratherapeutic due to unknown." The uric acid level was also recorded as greater than 7. Prior measurements of INR ranged from 1.8 to 2.2 through September 2, 2008, and the Veteran reported having an INR of 3.3 at the emergency room two days earlier. The Veteran was advised to skip two doses of warfarin and then continue with the normal dosage. The Veteran complained of symptoms including severe pain in the lower legs and feet at a rheumatology consult on September 30, 2008. He again indicated that he had been told in the past that he had high uric acid levels, and he believed this may be part of acute gout. Examination showed significant tightness in the left calf region to the whole leg, with a lot of ecchymosis and tenderness in all toes, as well as tenderness over the right big toe region. The rheumatologist assessed ecchymosis of the left leg related to high ProTime and acute gouty arthritis of the left big toe. He prescribed medications for gout and pain, and advised the Veteran to "hold" his Coumadin for the prior day and today, and to see his nephrologist. Thereafter, the Veteran continued to have severe pain and, on October 11, 2008, he was transported by ambulance for emergency treatment at Sunrise Medical Center in a confused state. Based on initial impressions including acute renal failure and possible sepsis, the Veteran was admitted and started on renal dialysis and sepsis protocol. In an October 13, 2008, evaluation for septic shock, the Veteran was noted to have been doing well on immune suppressant medications until developing leg pain 8-10 days earlier, when he sought treatment and was prescribed medications for acute gout, but he continued to have pain and had been unable to leave his house since October 4, 2008. The provider stated that it appeared that the Veteran had either stopped his immune suppressing medications or could not take them approximately a week or so before being admitted. The impression was "history of kidney transplantation and immune suppression, admitted with septic shock, left lower extremity cellulitis, questionable abdomen sepsis, recently diagnosed with left lower extremity gout?, rhabdomylolysis, shocked liver, bilateral pulmonary infiltrates rule out opportunistic infections, renal failure, leukocytosis due to above and use of steroids, coagulopathy, [and] anemia." Records from Kindred Hospital dated in November 2008 noted that the Veteran had been transferred from Sunrise, and a biopsy showed that acute renal failure was secondary to acute tubular necrosis. Thereafter, records from Lutheran Medical Center for a December 31, 2008, admission noted that renal biopsy subsequent to the Sunrise emergency treatment showed findings consistent with acute rejection. Subsequent medical records show that the Veteran had regular dialysis through July 2009, when he stopped dialysis and continued with medical management alone. The RO requested an opinion as to the § 1151 claim. In an April 2010 initial report, a VA examiner indicated that he could not provide the opinions because he was a primary care provider, and the treatment at issue was a rheumatology consult. He suggested that the RO obtain an opinion from a rheumatologist. Thereafter, the RO obtained an opinion from an unidentified specialist via a February 2011 report. This examiner stated that he could not resolve the questions of whether the Veteran's current rejected kidney transplant and need for dialysis was caused by a missed diagnosis of a right knee condition as gout by the VA rheumatology clinic without resorting to mere speculation. He explained that it was unclear if the October 1, 2008, diagnosis of gout in the right knee was incorrect, as well as whether the condition on October 11, 2008, was not an acute gouty attack as opposed to infection. To determine this, the examiner stated that he would have needed a sample of right knee fluid to be analyzed for possible infection and evidence of acute gouty attack, which could have been collected at the time of the VA rheumatology visit and also the subsequent private emergency room visit, prior to receiving antibiotics. The examiner indicated that there was no statement from any treating physician that the condition of "acute renal failure and septic shock" diagnosed on October 11, 2008, caused the rejected kidney transplant and subsequent need for dialysis. In conclusion, the examiner stated that it was "possible" that the Veteran was misdiagnosed by VA on October 1, 2008, and that this ultimately led to a rejected kidney transplant and subsequent need for dialysis, but there was "not clear evidence that this transpired" and he could only speculate. The February 2011 report is inadequate, as the examiner did not review all pertinent records. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (stating that an adequate VA examination considers the relevant history, provides a sufficiently detailed description of the disability, and provides a rationale to support the conclusions or opinions offered). The examiner stated that he had reviewed the September 30 and October 1, 2008, VA rheumatology notes, and the October 11, 2008, record of admission to Sunrise. He also indicated, however, that he did not review any private records, and there are additional records as referenced above. In light of the above, the Board finds that an opinion from a nephrologist is necessary to respond to the question of whether the Veteran's additional symptoms or disability of the kidneys were actually caused by the VA care or treatment at issue. Thereafter, if there is found to be additional disability due to VA care or treatment, the RO should request opinions from a nephrologist, rheumatologist, or other appropriate examiner, as to whether the additional disability was a result of fault on the part of VA, to include whether any necessary informed consent was obtained, and whether the additional disability was the result of an event not reasonably foreseeable. See 38 C.F.R. § 3.361(c), (d) (setting forth the requirements to show fault or event not reasonably foreseeable), § 17.32 (concerning informed consent requirements depending on the type of procedure). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a statement of the case on the issue of entitlement to an effective date prior to January 26, 2003, for the award of service connection for coronary artery disease status post myocardial infarction. The Veteran should be notified that a substantive appeal has not been received as to this issue, and the requirements to perfect an appeal. This issue should not be certified to the Board unless a timely substantive appeal is received. 2. Forward the entire claims file, including a copy of this remand, to a nephrologist for review and an opinion as to the claim for compensation under § 1151. The examiner should respond to the following: Is it at least as likely as not (probability of 50 percent or more) that the Veteran developed additional disability, to include rejection of kidney transplant and the need for dialysis, as a result of his VA treatment or care from September 29-30, 2008 (with note entry dated October 1, 2008)? Please provide an explanation for your opinion based on all lay and medical evidence, to include the February 2011 VA examiner's opinion report, and records from the VA and private facilities. If any requested opinion cannot be given without resorting to speculation, explain why. State what, if any, information is needed to offer an opinion. 3. Thereafter, if there is found to be additional disability as a result of VA treatment or care, forward the entire claims file, including a copy of this remand, to a nephrologist, rheumatologist, or other appropriate examiner for review and further opinions as to the claim for compensation under § 1151. The examiner(s) should respond to the following: (a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in the care or treatment from September 29 to September 30, 2008 (with entry date of October 1, 2008)? In other words, did VA providers fail to exercise the degree of care that would be expected of a reasonable health care provider, either through action or inaction? In particular, was the Veteran incorrectly diagnosed with gout or some other condition, as opposed to infection, due to fault? (b) If not, was any necessary informed consent obtained for the VA's treatment of the Veteran's complaints from September 29-30, 2008 (with entry date of October 1, 2008)? (c) If there was no fault and any necessary informed consent was obtained, is it at least as likely as not (probability of 50 percent or more) that the Veteran's additional disability was due to an event not reasonably foreseeable? In responding to each of the above, please provide an explanation for your opinion based on all lay and medical evidence, to include the February 2011 VA examiner's opinion report, and records from the VA and private facilities. If any requested opinion cannot be given without resorting to speculation, explain why. State what, if any, information is needed to offer an opinion. 4. Thereafter, readjudicate the claim for entitlement to compensation pursuant to § 1151 for residuals of misdiagnosis and treatment of gout. If the appeal is not fully granted, issue a supplemental statement of the case before returning the case to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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. 2013). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs