Citation Nr: 1514092 Decision Date: 04/01/15 Archive Date: 04/09/15 DOCKET NO. 09-26 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating higher than 60 percent for cardiomyopathy prior to October 28, 2014. 2. Entitlement to a rating higher than 60 percent for the cardiomyopathy since October 28, 2014. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD L. Driever INTRODUCTION The Veteran served on active duty in the U. S. Coast Guard from November 1999 to July 2002. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an October 2006 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted the Veteran service connection for cardiomyopathy and assigned an initial 60 percent rating for this disability retroactively effective from July 30, 2002, so back to the day following his last day of service when he returned to life as a civilian. He appealed for a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran and his mother testified in support of this claim during April 2009 and April 2014 hearings at the RO, the first before a Decision Review Officer (DRO) and the second before the undersigned Veterans Law Judge (VLJ) at the Board. In October 2014 the Board remanded this claim to the Agency of Original Jurisdiction (AOJ) for further development. In that remand the Board characterized the claim more broadly, as just one claim covering all time periods at issue in this appeal. But for reasons that will become evident below, the Board is recharacterizing this claim as, in effect, two claims covering separate periods of time (namely, before and since October 28, 2014). The Board is doing this because the rating for the cardiomyopathy is being "staged" as required by the holding in Fenderson, 12 Vet. App. at 125-26. More specifically, the Board is granting a higher 100 percent rating as of October 28, 2014. The remaining issue of whether a higher rating also is warranted for the immediately preceding period prior to October 28, 2014, requires further development before being decided on appeal and, thus, is again being REMANDED to the AOJ. VA processed this appeal entirely electronically utilizing Virtual VA and the Veterans Benefits Management System (VBMS), which are paperless claims processing systems. Accordingly, all future consideration of this appeal must remain mindful of this electronic record. FINDING OF FACT The Veteran's heart disability has worsened since 2013 and, on October 28, 2014, was noted to involve heart failure. CONCLUSION OF LAW The criteria are met for a higher 100 percent rating for the cardiomyopathy as of October 28, 2014. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7020 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Specifically, VA must notify a claimant and his or her representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim, of which portion of the evidence the claimant is to provide and of which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. VA must also assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him or her a medical examination or obtaining a medical opinion. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). Here, though, there is no need to discuss whether VA complied with these duties the VCAA requires. Rather, given the Board's favorable disposition of this claim, any lack of compliance is at most non-prejudicial or harmless error, not affecting the essential fairness of the adjudication. 38 C.F.R. § 20.1102 (2014); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, but instead must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant bears the burden of proof of not only establishing this error, but also, above and beyond that, showing that it is unduly prejudicial or outcome determinative of his claim). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's electronic files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence the Veteran submitted or which VA associated with the claims file on the Veteran's behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence). Rather, below, the Board's analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him). II. Analysis The Veteran believes his heart disability should be rated higher than 60 percent. According to a written statement he submitted in August 2007 and hearing testimony he and his mom provided in April 2009 and April 2014, this disability is not getting better (to the contrary worse), causes chronic fatigue, fainting episodes, difficulties sleeping and concentrating, chest pains and weakness, and affects his work (necessitates multiple call-ins on the job) and everyday life. Allegedly, his private doctor has told him that, given the dangerous nature of his condition, he should not be working or driving. The RO has rated the Veteran's heart disability as 60-percent disabling pursuant to Diagnostic Code (DC) 7020, which governs ratings of cardiomyopathy. There is evidence of record, however, establishing the Veteran's entitlement to a greater 100 percent rating - which is the next higher rating under this DC - but only for the moment as of October 28, 2014. See 38 C.F.R. § 4.104, DC 7020 (requiring 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). In October 2014, the Board remanded this claim to the AOJ for the purpose of affording this young Veteran another VA compensation examination. The examiner who conducted the examination in response to this remand directive determined the Veteran's heart disability had worsened since his last VA compensation examination (in 2013) and that his METS score [referring to the metabolic equivalents (multiples of resting oxygen uptake)] was not the best indicator of the severity of his disability. The examiner did not diagnose congestive heart failure, but nonetheless explained that the Veteran had moderate global dysfunction, which means his heart is not pumping correctly, but rather slowly and sluggishly, representing heart failure that will continue to deteriorate. So based on this VA examiner's medical opinion, the Board concludes that the Veteran's heart disability picture, from the date of that examination (October 28, 2014), more nearly approximates the criteria for the 100 percent rating as opposed to the lesser 60 percent rating. See 38 C.F.R. § 4.7 (when there is a question as to which rating to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating). ORDER A higher 100 percent rating is granted for the cardiomyopathy as of October 28, 2014, subject to the statutes and regulations governing the payment of VA compensation. REMAND The Board sincerely regrets the additional delay that inevitably will result from again remanding, rather than deciding, the remaining component of this appeal (the pre October 28, 2014 period), but this additional development is necessary to ensure the record is complete and so the Veteran is afforded every possible consideration. The Veteran has testified that he receives treatment for this heart disability at issue from Dr. K., a cardiologist at St. Joseph's Medical Center. There are some records of this treatment in the claims file, but none covering the entire time period at issue from July 2002 to October 2014. As the Veteran claims that these records show a more severe heart disability than is shown in the VA examination reports, it is crucial that they all be obtained and considered. In addition, since the beginning of the appeal period, the Veteran has claimed that his heart disability affects his employment. Prior to 2008 or 2009, he worked, but since then he has not, allegedly because of his heart disability. An addendum opinion thus is needed regarding whether and to what extent this heart disability impeded the Veteran's employability from July 2002 to October 2014. Finally, during the course of this appeal, the RO denied the Veteran's claim of entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran appears to be raising this claim once again, however, but as a component of his claim for a higher rating for his cardiomyopathy. The AOJ should determine what action is appropriate with regard to this matter in light of the Veteran's continued assertions of unemployability owing to this service-connected disability. Accordingly, this remaining component of the claim for a higher rating for the cardiomyopathy is again REMANDED for the following additional development and consideration. 1. After securing any necessary authorization, obtain and associate with the electronic file all outstanding records of the Veteran's private cardiology treatment, particularly those dated from 2002 to 2014. 2. After obtaining these records, contact the VA examiner who performed the October 2014 VA compensation examination and ask that he provide an addendum statement (supplemental comment with supporting rationale) based on all treatment records in the claims file, which addresses the following matters: a) whether at any time from July 2002 to October 28, 2014, the Veteran's cardiomyopathy markedly interfered with his employability or rendered him unable to sustain or retain employment that could be considered substantially gainful versus just marginal in comparison. b) whether at any time from July 2002 to October 28, 2014, the METS scores and ejection fraction results were not true indicators of the severity of the Veteran's cardiomyopathy and, if so, whether during this period his heart disability picture more nearly approximated heart failure. 3. Review the opinion to ensure it is responsive to these questions and, if it is not, return it to the examiner for all necessary additional information. 4. Then readjudicate the remaining claim at issue (the rating for the cardiomyopathy prior to October 28, 2014) in light of this and all other additional evidence, to include consideration of the Veteran's continued assertions of unemployability owing to this service-connected disability. If this remaining component of the claim continues to be denied or is not granted to the Veteran's satisfaction, send him and his representative another supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining portion of the claim. The Veteran has the right to submit additional evidence and argument concerning this remanded claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs