Citation Nr: 1552595 Decision Date: 12/16/15 Archive Date: 12/23/15 DOCKET NO. 14-19 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date prior to April 9, 2002 for the grant of entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder. 2. Entitlement to an initial disability rating in excess of 30 percent for service-connected viral myocarditis condition with chest pain with radiation to the left shoulder from April 9, 2002 and in excess of 60 percent from December 30, 2010. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1983 to June 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder and assigned a 60 percent disability rating, effective June 29, 2011. A May 2014 rating decision granted a 30 percent disability rating for the Veteran's service-connected viral myocarditis condition with chest pain with radiation to the left shoulder from April 9, 2002 and a 60 percent disability rating from December 30, 2010. With respect to the Veteran's earlier effective date claim, subsequent to the Statement of the Case (SOC) issued in May 2014, additional documents, to include documents obtained by VA, were associated with the Veteran's electronic claims file. While the Veteran filed his substantive appeal in May 2014 and evidence submitted by the Veteran is therefore subject to initial review by the Board, additional documents were obtained by VA and therefore waiver of consideration of such documents by the Agency of Original Jurisdiction (AOJ) is not assumed. See 38 U.S.C.A. § 7105(e)(1) (West 2014). These additional documents, however, do not relate to or have a bearing on the Veteran's earlier effective date claim; as such they are not pertinent and the Board can proceed with a decision on this claim. See 38 C.F.R. § 20.1304(c) (2015). With respect to the Veteran's initial rating claim, such is being remanded on a different basis, and the AOJ will therefore have the opportunity to review any additional documents in the first instance. A review of the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) was conducted. The issue of entitlement to an initial disability rating in excess of 30 percent for service-connected viral myocarditis condition with chest pain with radiation to the left shoulder from April 9, 2002 and in excess of 60 percent from December 30 2010 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran initiated a claim for cardiomyopathy and hypertension in November 1992, which was granted in March 1993. The Veteran did not appeal the decision. 2. The Veteran initiated a claim for an increased rating for cardiomyopathy and hypertension in April 2002, which was denied in February 2003. The Veteran did not appeal the decision. 3. In June 2011, the Veteran initiated a claim for an increased rating for cardiomyopathy and hypertension as well as a claim for secondary service connection for viral myocarditis. 4. No communication was received prior to April 9, 2002 from the Veteran indicating intent to apply for entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder. CONCLUSION OF LAW The criteria for an effective date prior to April 9, 2002 for the grant of entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder have not been met. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2015); 38 C.F.R. §§ 3.1(p), 3.155(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist VA has a duty to notify and duty to assist a Veteran in the claims process. The Veteran's earlier effective date claim arises from the Veteran's disagreement with the effective date assigned following the grant of entitlement to service connection. Once entitlement to service connection is granted, the claim is substantiated and any defect in notice is not presumed prejudicial, but must be demonstrated by the appellant. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Such prejudice has not been alleged or demonstrated in this case. In any event, the Veteran was provided with adequate notice in an October 2011 letter, prior to the July 2012 rating decision on appeal. With respect to the duty to assist, the Board finds that this has been fulfilled. As will be discussed further below, the outcome of this appeal turns on the date a claim was received. There is no indication of any outstanding records or other action that VA could take to assist the Veteran in substantiating his claim. The Board notes that the development requested on remand (obtaining outstanding VA treatment records and conducting a VA examination) are not relevant to the Veteran's earlier effective date claim, which again turns on the date a claim was received. In sum, VA has satisfied its duty to notify and assist with respect to the Veteran's earlier effective date claim. II. Legal Criteria Generally, an unappealed RO rating decision is final. See 38 U.S.C.A. § 7105(c) (West 2014). Generally, a Board decision is final as of the date stamped on the face of the decision when mailed, unless reconsideration is ordered, or the decision is appealed to the United States Court of Appeals for Veterans Claims (Court). See 38 C.F.R. § 20.1100 (2015). Generally, for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2015). The regulation in effect as applicable in this case (the regulation was subsequently amended effective March 2015) defined a "claim" as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2012). With regard to informal claims, the regulation in effect as applicable in this case (the regulation was also subsequently amended effective March 2015) stated that "[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by the [VA]...may be considered an informal claim. Such informal claim must identify the benefit sought." See 38 C.F.R. § 3.155(a) (2012). III. Analysis The Veteran had active duty service from June 1983 to June 1992. In November 1992, he filed a claim for entitlement to service connection for, as relevant, idiopathic nondilated cardiomyopathy and hypertension. A March 1993 rating decision granted entitlement to service connection for "hypertension with history of idiopathic non-dilated cardiomyopathy." The rating decision stated in part that "[t]he [V]eteran's cardiac enlargement apparently resolved with treatment and will be evaluated with his current hypertension." A 10 percent disability rating was assigned, effective June 1992 (one day after the Veteran's separation from service). The Veteran did not appeal the rating decision with respect to the grant of entitlement to service-connection and assignment of a 10 percent disability rating for hypertension with history of idiopathic non-dilated cardiomyopathy. As the Veteran did not appeal the increased rating aspect, the decision on that issue became final. As an aside, the Board notes that the Veteran did file a notice of disagreement (NOD) in April 1994 as to another issue in the March 1993 rating decision, specifically entitlement to service connection for myofascial pain syndrome, left shoulder. As to that issue, a SOC was issued in September 1994, the Veteran filed a VA Form 9 in November 1994 and in a July 1996 decision the Board denied the Veteran's appeal. A statement was received on April 9, 2002, in which the Veteran stated that he "would like to pursue an increase in my VA benefits." The AOJ interpreted this communication, as relevant, as a claim for an increased rating for his service-connected hypertension with history of idiopathic non-dilated cardiomyopathy. A February 2003 rating decision continued the assigned 10 percent disability rating for the Veteran's service-connected hypertension with history of idiopathic non-dilated cardiomyopathy. The Veteran did not appeal this rating decision; therefore, it became final. A statement was received on June 29, 2011, in which the Veteran stated that "I wish to re-open my claim for [c]ompensation for [h]ypertension wh[]ich has also caused [h]eart related problems. I also wish to file for [c]ompensation for SCD of [v]iral [m]yocarditis condition with [c]hest pains with radiation to the [l]eft [s]houlder, upper/[l]ower arms and [b]ack, [n]eck." A November 2011 rating decision continued the assigned 10 percent disability rating for the Veteran's service-connected hypertension with history of idiopathic non-dilated cardiomyopathy and deferred a decision on the issue of entitlement to compensation for viral myocarditis condition with chest pain with radiation to the left shoulder. A July 2012 rating decision granted entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder. A 60 percent disability rating was assigned, effective June 29, 2011. The Veteran filed a NOD as to this decision in September 2012 and stated that "I wish to file a [NOD] with this decision to grant me only 60% for [v]iral [m]yocarditis condition with [c]hest [p]ain with radiation to [l]eft [s]houlder" and that "I also wish to disagree with the effective date of claim which I feel should be 1992." A May 2014 rating decision granted a 30 percent disability rating for the Veteran's service-connected viral myocarditis condition with chest pain with radiation to the left shoulder from April 9, 2002 and a 60 percent disability rating from December 30, 2010. The rating decision stated that "[e]ntitlement to an earlier effective date for the evaluation assigned for viral myocarditis condition with chest pain with radiation to the left shoulder has been granted" and that "[i]n conjunction with your appeal, we noted that you were already service connected for hypertension with history of idiopathic non-dilated cardiomyopathy. Current regulations require that hypertension be evaluated separately from heart disease." The rating decision further stated that "[a]n evaluation of 30 percent is assigned from April 9, 2002, the date we received your claim for an increased evaluation for your service-connected hypertension which should have resulted in a separate evaluation for your heart disease." The May 2014 rating decision also continued the assigned 10 percent disability rating for the Veteran's service-connected hypertension and noted that it was "previously rated with history of idiopathic non-dilated cardiomyopathy," which the Board notes was reflected on the accompanying codesheet. An SOC was issued in May 2014 and the Veteran filed a Form 9 in May 2014, in which he stated that "I wish to disagree with the effective date of claim for my condition[] of [v]iral [m]yocarditis [c]ondition. I feel the effective date of claim should be 1993, the origi[na]l date of my claim." After review of the record, the Board finds that the criteria for an effective date prior to April 9, 2002 for the grant of entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder have not been met. As noted, a July 2012 rating decision granted entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder and assigned an effective date of June 29, 2011. The assigned effective date was presumably based on the Veteran's June 29, 2011 statement, which stated in part that "I also wish to file for [c]ompensation for SCD of [v]iral [m]yocarditis condition with [c]hest pains with radiation to the [l]eft [s]houlder, upper/[l]ower arms and [b]ack, [n]eck." In a May 2014 rating decision, the AOJ granted a 30 percent disability rating for the Veteran's service-connected viral myocarditis condition with chest pain with radiation to the left shoulder from April 9, 2002 and stated that "[a]n evaluation of 30 percent is assigned from April 9, 2002, the date we received your claim for an increased evaluation for your service-connected hypertension which should have resulted in a separate evaluation for your heart disease." Upon review, it is unclear on what legal basis the RO determined that an earlier effective date of April 2002 was warranted. Perhaps the AOJ accepted the Veteran's April 9, 2002 statement as a claim for entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder (although that statement made no mention of such a disability). Alternatively, the RO may have essentially found a clear and unmistakable error in its prior, February 2003, rating decision denying an increased rating. Again, as the RO did not explain any legal basis for altering a final decision, the Board is left with the effective date of April 2002. Regardless, prior to April 9, 2002, no communication was received from the Veteran indicating intent to apply for entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder. As noted above, the Veteran filed a claim in November 1992 for service connection for idiopathic nondilated cardiomyopathy and hypertension, but did not mention viral myocarditis, a separate and distinct heart disability. The March 1993 rating decision granted entitlement to service connection for both of the Veteran's claims, specifically granting entitlement to service connection for hypertension with history of idiopathic non-dilated cardiomyopathy. With respect to the left shoulder, the March 1993 rating decision denied entitlement to service connection for myofascial pain syndrome, left shoulder, which the Veteran appealed and was ultimately denied in a July 1996 Board decision. With respect to the March 1993 rating decision and the grant of entitlement to service connection for hypertension with history of idiopathic non-dilated cardiomyopathy, the Veteran did not appeal this decision or submit new and material evidence within one year of the decision and as such, the rating decision became final. See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). With respect to the July 1996 Board decision denying entitlement to service connection for myofascial pain syndrome, left shoulder, the Veteran did not appeal this decision to the Court and it was therefore final. See 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1996). A freestanding claim for an earlier effective date is a nullity, and the only basis for challenging the effective date of a now final decision date is clear and unmistakable error. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Such has not been argued in this case. Subsequent to the March 1993 rating decision and prior to the April 9, 2002, the only communication received from the Veteran related to his appeal regarding entitlement to service connection for myofascial pain syndrome, left shoulder (the April 1994 NOD and November 1994 Form 9) and a November 1994 Request for VA Medical Survey related to U.S. Postal Service employment. No communication was received prior to April 9, 2002 from the Veteran indicating intent to apply for entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder. As noted, for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later. Assuming (without deciding) for purposes of this decision that entitlement arose for entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder prior to April 9, 2002, the date of claim, as the later date, will be the effective date for the grant of entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder. The Board has considered the Veteran's contentions, which essentially were that the effective date for the grant of entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder should be in 1992. See September 2012 NOD. Presumably, the Veteran was advocating for an effective date of June 11, 1992, the same effective date of the grant of entitlement to service connection for hypertension with history of idiopathic non-dilated cardiomyopathy. However, without having brought a claim for the disability, such contentions have no merit. The Board acknowledges that the RO established April 2002 as the effective date of the claim for service connection. As this is favorable to the Veteran, it will not disturb that finding. However, as there is no legal basis for an effective date prior to June 2011 for the grant of service connection for viral myocarditis, the Board finds that the claim for an earlier effective date must be denied. ORDER Entitlement to an effective date prior to April 9, 2002 for the grant of entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder is denied. REMAND As discussed above, the Board has denied entitlement to an earlier effective date prior to April 9, 2002 for the grant of entitlement to service connection for viral myocarditis condition with chest pain with radiation to the left shoulder. The remaining issue on appeal is entitlement to an initial disability rating in excess of 30 percent for service-connected viral myocarditis condition with chest pain with radiation to the left shoulder from April 9, 2002 and in excess of 60 percent from December 30, 2010. Upon review, remand is required for additional development. Initially, VA treatment records appear to be outstanding and must be obtained on remand. The VA treatment records of record are limited to a small number of pages dated between January 2001 and November 2002. The May 2014 rating decision listed under the evidence heading electronic review of VA Medical Center (VAMC) records from Biloxi from December 4, 1992 to January 11, 2013 and from Birmingham from April 30, 1994 to April 15, 2014. An October 2015 rating decision (available in VBMS) continued the 10 percent disability rating assigned for service-connected left shoulder strain. Listed under the evidence heading was "[e]lectronic review of VA Medical Center Records, conducted October 15, 2015," without any specification as to the location or date range of such records. As such, VA treatment records have been reviewed by the AOJ, but are not of record. While on remand, therefore, all outstanding VA treatment records, to include from the Biloxi VAMC (dating from December 4, 1992 to January 11, 2013), from the Birmingham VAMC (dating from April 30, 1994 to April 15, 2014) and any additional VA treatment records subsequent to those periods, must be obtained. In addition, the Board notes that the Veteran was last afforded a VA examination with respect to his service-connected viral myocarditis condition with chest pain with radiation to the left shoulder in July 2012. Based on the lack of medical evidence available before the Board, the current severity of the Veteran's service-connected viral myocarditis condition with chest pain with radiation to the left shoulder is unclear. As such, while on remand, the Veteran must be afforded a new VA examination to address the current severity of this condition. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include from the Biloxi VAMC (dating from December 4, 1992 to January 11, 2013), from the Birmingham VAMC (dating from April 30, 1994 to April 15, 2014) and any additional VA treatment records subsequent to those periods. 2. Afford the Veteran a VA examination to determine the current severity of his service-connected viral myocarditis condition with chest pain with radiation to the left shoulder. All indicated evaluations, studies, and tests deemed necessary must be accomplished and all findings reported in detail. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are 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 2014). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs