Citation Nr: 1606874	
Decision Date: 02/24/16    Archive Date: 03/01/16

DOCKET NO.  14-22 682	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether new and material evidence was received with respect to the claim of service connection for a sinus disability.  

2. Whether new and material evidence was received with respect to the claim of service connection for hearing loss.

3. Entitlement to service connection for diabetes mellitus.

4. Entitlement to service connection for a gastrointestinal disability to include gastroparesis and gastroesophageal reflux disease (GERD).

5. Entitlement to service connection for peripheral neuropathy of the lower extremities.

6. Entitlement to service connection for artery disease of the lower extremities.

7. Entitlement to service connection for a skin disability.

8. Entitlement to service connection for hypertension.

9. Entitlement to service connection for reproductive disability to include erectile dysfunction and low sex drive.

10. Entitlement to service connection for peptic ulcer.

11. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

12. Entitlement to a rating in excess of 10 percent for coronary artery disease (CAD).

13. Entitlement to an effective date prior to November 9, 2010 for the grant of service connection for CAD.

14. Entitlement to an effective date prior to October 5, 2009 for the grant of service connection for PTSD.

15. Entitlement to total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Christopher Loiacono, National Veterans Disability Advocates


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1969 to April 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010, January 2011, and November 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The Veteran testified before the undersigned in a September 2015 hearing.  A hearing transcript was associated with the claims file and reviewed.

The issues of service connection for GERD, peripheral neuropathy, hearing loss, skin disability, reproductive disability, and sinus disability and increased ratings for PTSD and CAD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

The issue of service connection for tinnitus has been raised by the record in a December 2011 statement and the Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).


FINDINGS OF FACT

1. In the Board hearing, the Veteran withdrew his appeals of the denials of service connection for diabetes, peripheral vascular disease, hypertension, and peptic ulcer and an earlier effective date for the grant of service connection for PTSD prior to promulgation of a decision on the appeal.

2. Resolving all doubt in the Veteran's favor, coronary artery disease was evidenced in an October 6, 2010 record.


CONCLUSIONS OF LAW

1. Regarding the issues of service connection for diabetes, peripheral vascular disease, hypertension, and peptic ulcer and an earlier effective date for PTSD, the criteria for withdrawal of the appeals by the appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).

2. The criteria for an effective date of October 6, 2010, but not earlier, for the grant of service connection for CAD have been met.  38 U.S.C.A. §§ 5101, 5103, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.114, 3.400, 3.816. (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Dismissal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.202.  At any time before the Board promulgates a decision, an appellant or his or her authorized representative may withdraw a substantive appeal as to any or all issues either on the record at a hearing or in writing.  38 C.F.R. § 20.204. 

In the Board hearing, the Veteran indicated that he wished to withdraw his appeals of the denials of service connection for diabetes, peripheral vascular disease, hypertension, and peptic ulcer and an earlier effective date for the grant of service connection for PTSD in accordance with 38 C.F.R. § 20.204.  The withdrawal was received by the Board prior to the promulgation of a decision on the appeal.  As such, there remain no allegations of error of fact or law for appellate consideration as to these issues.  The Board has no jurisdiction to review the appeals of the denials of service connection and earlier effective date, and the appeals are dismissed.  See 38 C.F.R. § 20.202.

II. Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a).  

However, the U.S. Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated.  The Court recognized that enactment of the VCAA does not affect matters on appeal when the questions are determined as a matter of law.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).  

For the earlier effective date claim, the VCAA does not apply, because the facts of the claim are undisputed, and the claim is denied on the basis of the controlling law and regulations alone, which render the Veteran ineligible for the claimed benefits.  Nevertheless, the RO sent the Veteran a letter in January 2010 providing him notice in compliance with the VCAA and implementing laws.  See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The United States Court of Appeals for Veterans Claims (Court) has held that VA employees have two duties to claimants during hearings: to fully explain the issues and to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103(c)(2).  At the September 2015 hearing, the undersigned identified and explained the issue and suggested evidence that could support his claims.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.

III. Earlier effective date

The Veteran has asserted that the effective date for the grant of service connection for coronary artery disease should be prior to November 9, 2010, because the disease existed prior to that date.

Generally, the effective date for the grant of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service.  Otherwise, for an award based on an original claim, a claim reopened after a final disallowance, or a claim for an increased rating, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  

Additionally, when VA or an adjudicate body passes a liberalizing law and compensation is granted, a Veteran may receive a retroactive effective date prior to the date he would be entitled to under the above rules.  See 38 C.F.R. § 3.114.  Diseases associated with herbicide exposure are subject to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs.  See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III).  If a qualifying veteran is entitled to a disability compensation for a covered herbicide disease, the effective date of the award will be the later of the date a prior claim was originally received by VA or the date the disability arose.  38 C.F.R. § 3.816(c)(1)-(2).  If there was no prior claim, then the effective date of the award shall be determined in accordance with the general effective date regulations, cited above.  38 C.F.R. § 3.816(c)(4).  

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.

The Board has reviewed the evidence and determines that the criteria for an effective date of October 6, 2010, but not earlier, for the grant of service connection for coronary artery disease have been met.  See 38 C.F.R. §§ 3.114, 3.400, 3.816.

Resolving all doubt in the Veteran's favor, the evidence shows that he had coronary artery disease on October 6, 2010.  VA received the Veteran's informal claim for heart disease in a phone call on January 14, 2010.  Ischemic heart disease, and CAD, was added to the list of herbicide-related diseases after the Veteran's claim.  Therefore, the effective date should be the later of the date of the claim or the date the disability arose.  See 38 C.F.R. § 3.816(c).  During a July 2010 examination, the Veteran was unable to complete a stress test because he had to stop exercising after 1 minute and 29 seconds due to low back and leg pain.  The examiner found no clear evidence of coronary artery disease or ischemic heart disease based on the information he had.  An August 23, 2010 examiner also noted no evidence of CAD.  VA treatment records from November 9, 2010 show a diagnosis of non-obstructive CAD.  Based on the evidence, the Veteran did not have CAD on August 23, 2010 and had a definitive diagnosis on November 9, 2010.  A VA treatment record notes an October 6, 2010 resting nuclear medicine test that showed a small defect in the inferoapical segment, which may have represented ischemia or previous infarct.  Although this record is not a definitive diagnosis, the Board resolves doubt in the Veteran's favor and finds this sufficient evidence of ischemia.  As the evidence prior to October 6, 2010 is against a finding of CAD, October 6, 2010, but not earlier, is the appropriate date for service connection.  See 38 C.F.R. § 3.816(c).


ORDER

The appeal of the denial of service connection for diabetes is dismissed.

The appeal of the denial of service connection for peripheral vascular disease is dismissed.

The appeal of the denial of service connection for hypertension is dismissed.

The appeal of the denial of service connection for peptic ulcer is dismissed.

The appeal of the denial of an earlier effective date for the grant of service connection for PTSD is dismissed.

An effective date of October 6, 2010, but not earlier, for the grant of service connection for CAD is granted.


REMAND

During the Board hearing, the Veteran reported receiving Social Security benefits beginning in January 2011 for multiple disabilities including PTSD, coronary artery disease, and hearing loss.  The RO previously requested Social Security Administration (SSA) records prior to January 2011.  The AOJ should make an additional request for SSA records.  See 38 U.S.C.A. §5103A; Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010).   

Further, VA examinations are needed for some of the claims.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  First, the evidence shows current treatment for skin problems and lay statements of skin problems since the time of service.  Next, the evidence shows a diagnosis of GERD in the 2011 examination, complaints of stomach cramps in service, and continuous complaints and treatment for stomach problems.  During an August 2010 examination, the Veteran was diagnosed with peripheral neuropathy in his lower extremities and the examiner stated it was as likely as not related to diabetes.  The medical opinion is insufficient because it does not provide rationale or address why the neuropathy is less likely due to service or herbicide exposure.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007).  For the PTSD, CAD, and TDIU claims, new examinations would be helpful to best determine the Veteran's current disability picture.  

Accordingly, the case is REMANDED for the following action:

1. Obtain any of the Veteran's SSA records and associate them with the claims file.  Document requests.

2. Thereafter, schedule the Veteran for a VA examination for his skin claim and forward the claims file to the examiner to address the following:

a. Are any skin disabilities diagnosed since July 2010 at least as likely as not related to service, including exposure to herbicides?

Consider all the evidence of record including the Veteran's, his ex-wife's and his daughter's statements of continuous skin problems and treatment in the 1980s and 1990s.  Provide rationale for any conclusions.

If the needed opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or to the limits of scientific or medical knowledge.

3. After completing (1) above, schedule the Veteran for a VA examination for his gastrointestinal disability claim and forward the claims file to the examiner to address the following:

a. Is the Veteran's GERD at least as likely as not related to service, including herbicide exposure?  Did GERD at least as likely as not begin during service or with stress experienced during service?

Consider all the evidence of record including the Veteran's and his wife's statements of symptoms since service and treatment in the 1980s and 1990s.  Provide rationale for any conclusions.

Is it at least as likely as not that GERD has been caused by the service-connected PTSD or medications taken for that disability or for CAD?  If not, is it at least as likely as not that GERD has been permanently worsened by PTSD, CAD or medications taken for those disabilities?  If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation.  This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.  

If the needed opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or to the limits of scientific or medical knowledge.

4. After completing (1) above, forward the claims file to the August 2010 examiner, or another appropriate examiner if that examiner is unavailable, to provide an opinion on the peripheral neuropathy claim.

a. Is the Veteran's current peripheral neuropathy at least as likely as not related to service or herbicide exposure?  If you find peripheral neuropathy more likely due to diabetes, please explain why.

Consider all lay and medical evidence and provide rationale for any conclusions.

If the needed opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or to the limits of scientific or medical knowledge.

5. After completing (1), schedule the Veteran for a mental health examination.  The examiner should measure and record the current PTSD symptoms and any effects on social and occupational functioning.  The examiner should address the following:

a. How do the Veteran's service-connected disabilities affect his functioning?  

b. What types of limitations would he experience with those disabilities?  Specifically, would his service-connected disabilities prevent him from working in a job with the same physical and mental/social requirements as his past work as a truck driver or in other low-skill, manual labor settings? 

If the needed opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or to the limits of scientific or medical knowledge.

6. After completing (1), schedule the Veteran for a VA examination for coronary artery disease.  The examiner should measure and record the current level of disability including ejection fraction, METS, and any related symptoms of dyspnea, fatigue, angina, dizziness, or syncope.  The examiner should address the following:

a. How do the Veteran's service-connected disabilities affect his functioning?  

b. What types of limitations would he experience with those disabilities?  Specifically, would his service-connected disabilities prevent him from working in a job with the same physical and mental/social requirements as his past work as a truck driver or in other low-skill, manual labor settings? 

If the needed opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of any evidence or to the limits of scientific or medical knowledge.

7. If any claim remains denied issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

The appellant 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.  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).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs