Citation Nr: 1518996 Decision Date: 05/04/15 Archive Date: 05/13/15 DOCKET NO. 13-08 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for anxiety disorder, not otherwise specified (NOS). 2. Entitlement to service connection for a disability manifested by chest pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, S. V. and M. W. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from July 1989 to November 1989, from September 1990 to May 1991 and from June 1991 to July 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The record reflects the Veteran current resides within the jurisdiction RO in St. Paul, Minnesota, from which the appeal was certified. The Veteran submitted a May 2012 notice of disagreement, based on the April 2012 rating decision, specific to the claims for the left shoulder, right shoulder, low back, right knee, bilateral hearing loss, right ankle, sleep disorder, chest pain, headaches and hemorrhoids. In July 2012, the Veteran submitted a notice of disagreement as to the initial rating assigned in the April 2012 rating decision for anxiety disorder, NOS. However, in his February 2013 substantive appeal, the Veteran stated he withdrew his claims for entitlement to service connection for headaches and for an increased evaluation for hemorrhoids, thus these issues are not before the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2014). Additionally, the Veteran's February 2013 substantive appeal, while indicating withdrawal of the issues as noted above, also affirmatively indicated his intent to continue the appeal only for service connection for a low back disability, service connection for chest pain, and entitlement to a higher initial rating for anxiety disorder, NOS. The February 2013 substantive appeal did not address the remaining issues in any manner. Further, the Veteran did not raise the issues of entitlement to service connection for a left shoulder condition, entitlement to service connection for a right shoulder condition, entitlement to service connection for a right knee condition, and entitlement to service connection for bilateral hearing loss at the August 2014 hearing. Hence, although the RO treated the February 2013 substantive appeal as pertaining to all the remaining issues and continued the appeal for all the remaining issues, as evidenced by the issuance of a subsequent supplemental statement of the case addressing these issues, the Board finds the remaining issues are not on appeal. In a statements received in October 2014, the Veteran and his representative requested that his claims for service connection for sleep apnea, chronic headaches, and bilateral hearing loss be reopened. Such matters are referred to the RO for appropriate action. During the pendency of appeal, a February 2014 rating decision increased the initial rating assigned for anxiety disorder, NOS to 50 percent, effective from August 1, 2011, the date of the grant of service connection. Because the increased rating does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities (rating schedule), the Veteran's claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). In the February 2014 rating decision, the RO also granted entitlement to service connection for lumbar spine degenerative disc disease and degenerative joint disease, which represented a full grant of the benefit sought on appeal concerning this issue. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Although the Veteran expressed disagreement with the evaluation assigned in August 2014 testimony, such expressed disagreement does not constitute a valid notice of disagreement as it was not provided to the RO, as required by 38 C.F.R. § 20.300 (2014). Thus, a remand is not required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Additional evidence, including VA treatment records, most recently dated in January 2015, were associated with the claims file subsequent to the most recent, February 2014 supplemental statement of the case issued, in pertinent part, for entitlement to service connection for a disability manifested by chest pain. The Veteran did not waive review of this evidence. However, this evidence is duplicative of other evidence of record, including a November 2014 and a January 2015 VA treatment record, both of which provided a finding of no chest pain. Therefore, it is not necessary to remand the claim to the Agency of Original Jurisdiction (AOJ) for consideration of the evidence. See 38 C.F.R. § 20.1304(c) (2014). The Veteran and two witnesses testified at an August 2014 Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claim file. The issue of entitlement to an initial evaluation in excess of 50 percent for anxiety disorder, NOS, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The most competent and probative evidence of record does not show a chronic disability manifested by chest pain existed proximate to, or during, the appeal period. CONCLUSION OF LAW The criteria for service connection for a disability manifested by chest pain have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA letter issued August 2011 satisfied the duty to notify provisions with respect to service connection and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating. As the content of the notice letter fully complied with the VCAA requirements, the Board concludes that VA satisfied its duty to notify the Veteran with respect to his claim for a disability manifested by chest pain. VA satisfied the duty to assist the Veteran under the VCAA by gathering relevant records. VA has a duty to assist in obtaining the Veteran's service medical records, VA medical records and other relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). The Veteran's service medical records, VA treatment records and VA examination reports have been obtained and are associated with the claims file. Additionally, VA satisfied the duty to assist the Veteran by providing an examination to the Veteran in April 2012 which addressed a disability manifested by chest pain. The examiner interviewed the Veteran, recorded clinical findings, and documented the Veteran's subjective complaints for the claim. Thus, the Board concludes that the examination report is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In further compliance with the fundamentals of due process, the Veteran has been afforded a hearing before the undersigned VLJ in support of this appeal. See 38 C.F.R. § 20.700(a) (2014). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) (2014) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in August 2014, the issues on appeal were fully explained by the VLJ. In addition, the VLJ asked questions to ascertain the existence of any outstanding potentially available evidence which could help substantiate the claims. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Merits of the Claim Service Connection for a Disability Manifested by Chest Pain Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2014). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a). The evidence of record includes subjective lay statements and August 2014 testimony of chest pain. However, the most probative evidence does not reflect that a diagnosis has been provided with respect to the Veteran's reported symptoms with respect to chest pain. Specifically, an April 2012 VA examiner did not provide a diagnosis, stating that although there were symptoms there was no current clinical objective evidence of diagnosable disease or pathology. The April 2012 VA examiner noted such after review of the Veteran's claims file and specifically noted the in-service heart murmur. The April 2012 VA examiner noted the Veteran likely had gastroesophageal reflux disease (GERD), and the Board notes the Veteran is currently service-connected for such. Moreover, VA treatment records do not provide a diagnosis related to chest pain. A September 2011 VA treatment record reported, based on imaging, the Veteran's heart and pulmonary vasculature were normal. October 2011 VA treatment records noted no chest pain, pressure, palpitations, orthopnea, murmurs, rubs or gallops. A March 2012 VA treatment record documented the Veteran's cardiac system had RRR (regular rate and rhythm), nl S1 S2 (normal 1st heart sound and secondary heart sound), and no murmurs. In an April 2012 VA treatment record, the Veteran denied chest pain. While August 2012 VA treatment records noted chest soreness, such was reported in relation to a cough. Moreover, other August 2012 VA treatment records noted no chest pain and with respect to the Veteran's cardiac system such again noted RRR, nl S1 S2, and no murmurs. A January 2014 VA treatment record also noted no chest pain. Thus, review of the medical evidence reveals an absence of complaints chest pain or a diagnosis for such. The Board recognizes the Veteran's belief that he has a disability manifested by chest pain. Specifically, the Veteran, in August 2014 testimony, reported a burning type of chest pain. Nevertheless, the Veteran has not alleged that a specific diagnosis has been made of a distinct chronic disability with respect to his chest pain, other than the murmur noted during service and GERD. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the Veteran is not considered competent to provide a diagnosis. The Board highlights that competent statements are limited to that which the Veteran has actually observed and is within the realm of his personal knowledge; such knowledge comes to the Veteran through use of his senses-that which is heard, felt, seen, smelled or tasted. See Layno, 6 Vet. App. at 469-70. It is within the Veteran's realm of personal knowledge whether he experienced chest pain. It is not shown, however, that the Veteran possesses the medical expertise necessary to provide a probative opinion on a complex medical matter such a diagnosis of a chronic disability manifested by chest pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the most probative evidence fails to demonstrate that the Veteran has a disability manifested by chest pain. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability and in absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the requirement of a current disability is satisfied when the Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, the facts of the present case are distinguished from those of McClain. The evidence does not reflect that the Veteran had a disability that resolved during the pendency of the claim. Rather, as discussed above, the Board finds that the most probative evidence does not establish that the Veteran had a disability manifested by chest pain at any point during the appeal period or prior to his filing a claim for service connection. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In light of the above, the Board finds that entitlement to service connection for a disability manifested by chest pain is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56. ORDER Entitlement to service connection for a chronic disability manifested by chest pain is denied. REMAND The September 2013 VA examination for anxiety disorder, NOS, is inadequate. See Barr, 21 Vet. App. at 307. The September 2013 VA examination report only reflected that the Veteran suffered from anxiety disorder. However, there are additional diagnoses of record including, based on a July 2013 private examination report, of posttraumatic stress disorder (PTSD), and major depressive disorder, which were not addressed by the VA examiner. Additionally, an October 2011 VA treatment record diagnosed adjustment disorder with anxiety. Thus, on remand the VA examiner must attempt to differentiate the nature or extent of the service-connected psychiatric disability from the nonservice-connected psychiatric diagnoses. However, the Board emphasizes that if it is not possible to distinguish the effects of the service-connected anxiety disorder, NOS from any nonservice-connected mental disorder, the reasonable doubt doctrine dictates that all psychiatric symptoms be attributed to the Veteran's service-connected generalized anxiety disorder, NOS. See Mittleider v. West, 11 Vet. App. 181 (1998) (regulations require that when examiners are not able to distinguish the symptoms and/or degree of impairment due to a service-connected versus a non service-connected disorder, VA must consider all of the symptoms in the adjudication of the claim). Additionally, there is some indication, including in an October 2011 VA treatment record, that the Veteran suffers from middle sleep insomnia secondary to nightmares with inability to fall back asleep and, on remand, it such should be determined if such is part and parcel of the Veteran's service connected psychiatric disability. Additionally, in light of the remand, updated VA treatment records should be obtained. The record reflects the Veteran most recently received VA treatment from the Minneapolis VA Health Care System in January 2015. Thus, on remand, updated VA treatment records from the Minneapolis VA Health Care System, to include all associate outpatient clinics, since January 2015, should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's updated VA treatment records from the Minneapolis VA Health Care System, to include all associated outpatient clinics, since January 2015, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 2. Thereafter, schedule the Veteran for VA psychiatric examination. All necessary tests should be conducted. The complete record, to include a copy of this Remand, and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must comment on the frequency and the severity of the psychiatric symptomatology attributable to the Veteran's service-connected anxiety disorder, NOS, to include any associated sleep impairment not attributable to a separately identifiable sleep disorder. The VA examiner should expressly state which of the Veteran's psychiatric symptomatology are due to his service-connected anxiety disorder, NOS, without regard to any non service-connected psychiatric disorders which may be diagnosed. Furthermore, the VA examiner should provide an opinion as to the Veteran's GAF score due, solely, to his service-connected anxiety disorder, NOS without regard to any non service-connected psychiatric disorders which are diagnosed. If the service-connected psychiatric disability manifestations cannot be clinically distinguished from manifestations of nonservice-connected psychiatric disability, such should be stated in the examination report, and all psychiatric findings should be considered in combination. A complete rationale for all opinions expressed must be provided. 3. The Veteran must be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). 4. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs