Citation Nr: 1608780	
Decision Date: 03/04/16    Archive Date: 03/09/16

DOCKET NO.  12-28 907	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for a heart disability manifested by cardiomegaly and atrial fibrillation.

2.  Entitlement to a rating in excess of 10 percent for residuals of a cold injury to the right foot prior to December 6, 2013.

3.  Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Washington Department of Veterans Affairs

ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1950 to November 1969.  He died in September 2014.  The appellant is his wife (substituting for him in this appeal).  This appeal is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Seattle, Washington Department of Veteran Affairs (VA) Regional Office (RO) that, in pertinent part, continued a 10 percent rating for cold injury residuals to the right foot.  The appeal seeking a TDIU rating is before the Board on appeal from a July 2010 rating decision.  A February 2014 rating decision increased the rating for residuals of cold injury to the right foot to 30 percent from December 6, 2013.  Therefore, the relevant issues above have been characterized to reflect the consideration of "staged ratings."  However, as the residuals of a cold injury to the right foot are assigned the maximum schedular rating from December 6, 2013, such period is not for consideration herein.  The appellant had requested a hearing before a Veterans Law Judge in these matters, but withdrew that request by January 2016 correspondence.

[A November 2008 rating decision granted the Veteran service connection for posttraumatic stress disorder (PTSD), rated 10 percent, effective August 28, 2006.  He filed a timely January 2009 notice of disagreement with the initial rating assigned; an April 2009 statement of the case (SOC) was issued; and he timely perfected an appeal by filing a May 2009 substantive appeal.  In addition, the Veteran's March 2010 and December 2010 notices of disagreement (NODs) initiated appeals seeking service connection for numbness of both upper extremities, residuals of cold injury to the bilateral feet, and a heart disability.  In October 2012, separate statements of the case (SOCs) were issued addressing those matters and his TDIU claim.  In his most recent (October 2012) substantive appeal, the Veteran expressly acknowledged review of all SOCs and supplemental SOCs (SSOCs) received and limited the instant appeal to the matters involving the rating for residuals of a cold injury to the right foot, service connection for a heart disability, and seeking a TDIU rating.  Therefore, the matters of service connection for numbness and tingling of both upper extremities and seeking higher ratings for PTSD and/or residuals of a left foot cold injury are no longer before the Board.]

The Veteran died in September 2014, after perfecting appeals in these issues.  In December 2014, the appellant applied to be substituted for him, as well as for service connection for the cause of his death, DIC benefits, and accrued benefits.  The Agency of Original Jurisdiction (AOJ) determined that she was eligible to become a substitute claimant as the Veteran's surviving spouse.  A March 2015 rating decision denied service connection for the cause of the Veteran's death, DIC benefits, and accrued benefits; she has not filed a notice of disagreement with that decision.  

In January 2016, the Board received correspondence from the appellant withdrawing her hearing request and including lay statements from family members attesting to her state of health.  Such evidence is presumed to have been submitted with a waiver of consideration by the AOJ.

The issue of service connection for a heart disability manifested by cardiomegaly and atrial fibrillation on de novo review is being REMANDED to the AOJ.  VA will notify the appellant if further action on her part is required.


FINDINGS OF FACT

1.  An unappealed October 2007 rating decision denied the Veteran service connection for a heart disability (claimed as cardiomegaly), to include as due to exposure to herbicides, based essentially on finding that, while the Veteran was exposed to herbicides in service, the claimed disability is not among the diseases listed as presumed to be associated with exposure to herbicides and there was no other evidence that his current cardiomegaly is otherwise related to his service.

2.  Evidence received since the October 2007 decision suggests that the Veteran's disability manifested by cardiomegaly and atrial fibrillation may either be related directly to service or is secondary to his service-connected PTSD; relates to unestablished facts necessary to substantiate the underlying claim of service connection; and raises a reasonable possibility of substantiating such claim.

3.  It is reasonably shown that, prior to December 6, 2013, the Veteran's residuals of right foot cold injury were manifested by arthralgia, cold sensitivity, nail abnormalities, color changes, and X-ray abnormalities.

4.  In February 2014 correspondence, prior to the promulgation of a Board decision on the appeal in the matter, the Veteran stated that he wished to withdraw his appeal seeking a TDIU rating; therefore, there is no question of fact or law in the matter remaining for the Board to consider.  


CONCLUSIONS OF LAW

1.  New and material evidence has been received, and the claim of service connection for a heart disability manifested by cardiomegaly and atrial fibrillation may be reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015).

2.  A 30 percent rating is warranted for the Veteran's right foot cold injury residuals prior to December 6, 2013.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.104, Code 7122 (2015).
3.  Regarding the claim of entitlement to a TDIU rating, the criteria for withdrawal of an appeal have been met; the Board has no further jurisdiction in that matter.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

Inasmuch as this decision reopens the claim of service connection for a heart disability and grants the maximum schedular rating available for the Veteran's right foot cold injury residuals, and given the Veteran's withdrawal of his appeal seeking a TDIU rating, discussion of the VCAA's impact on such matters is not needed, as any notice or duty to assist omissions is harmless.  

Legal Criteria, Factual Background, and Analysis

The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal.  Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, in the present claims.

Claim to Reopen

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. § 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.  "New" evidence means existing evidence not previously submitted to agency decision-makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003).

The United States Court of Appeals for Veterans Claims (Court) has held that new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement.  The Court interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

To substantiate a claim of service connection, there must be evidence of: a current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

An October 2007 rating decision denied the Veteran service connection for a heart disability (to include as due to exposure to herbicides) based essentially on a finding that, while he was exposed to herbicides in service, the only heart disability shown (cardiomegaly) is not one presumed to be associated with exposure to herbicides and is not otherwise shown to be related to his service.  The Veteran was notified of that decision and his appellate rights, and did not timely initiate an appeal.  Therefore, that decision became final based on the evidence of record at the time.

Evidence in the record at the time of the October 2007 denial included the Veteran's STRs and service personnel records (which confirm he served in Vietnam but are silent for treatment, complaints, or diagnosis of a heart disability), postservice VA and private treatment records (showing a diagnosis of cardiomegaly), and lay statements.  

Evidence received since the October 2007 decision includes additional postservice VA and private treatment records indicating the Veteran has atrial fibrillation; new lay statements alleging his heart disability was manifested by both cardiomegaly and atrial fibrillation, and could be related to his ingestion of salt tablets during service, exposure to herbicides, or his service-connected PTSD; and, private and VA medical opinions suggesting the Veteran's PTSD contributed to his hypertension which, in turn, contributed to his atrial fibrillation.  Such evidence was not previously available and therefore is "new."  Moreover, it raises new theories of entitlement that were not previously considered, and includes medical opinions suggesting a medical nexus between the heart pathology shown and his service-connected PTSD.  Under the circumstances, the Board finds that the "new" evidence relates to an unestablished fact necessary to substantiate the service connection claim.  In light of the low threshold standard for reopening endorsed by the Court in Shade, it also raises a reasonable possibility of substantiating the claim.  Therefore, new and material evidence has been received, and the claim of service connection for a heart disability manifested by cardiomegaly and atrial fibrillation may be reopened.  Service connection for a heart disability on de novo review is addressed in the remand below.

Increased Rating for Residuals of a Right Foot Cold Injury

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

In a claim for increase the present level of disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The relevant temporal focus in a claim for increase begins one year prior to the date when the claim was filed.  As the claim seeking a higher rating for right foot cold injury residuals was received on September 15, 2009, the period for consideration is from September 15, 2008 to the date of the Veteran's death.  When the evidence reflects distinct time periods when the service connected disability exhibited diverse symptoms meeting criteria for different ratings during the course of an appeal, staged ratings are to be considered.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
Cold injury residuals are rated under Code 7122, which provides for a 10 percent rating for arthralgia or other pain, numbness, or cold sensitivity; a 20 percent rating for arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis); and a 30 percent (maximum) rating for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis).  38 C.F.R. § 4.104, Code 7122.

On November 2009 VA examination, the Veteran said the injured parts of his feet were sensitive to cold and ached.  He reported a 59-year history of Raynaud's Syndrome involving the feet, ankles, and hands.  Typical attacks were described as aching of the feet and ankles when it was cold.  He also reported claudication upon walking 200 yards on level ground at two miles per hour.  He alleged changes in skin color, disturbances of nail growth and edema.  He denied any profuse sweating, abnormal sensation, recurrent fungal infections, breakdown of frostbite scars, feeling of a cold body in hot weather, sleep disturbances due to pain and skin thickening or skin thinning.  He reported joint pains and foot pain, particularly when cold.  He denied any overall functional impairment from the condition.  Physical examination showed atrophic skin changes, but no findings of persistent coldness, ischemic limb pain at rest, gangrene, or deep ischemic ulcer.  Raynaud's Syndrome was not present, and there was no evidence of hand tremor.  The right foot was tender, but there was no painful motion, edema, disturbed circulation, weakness, atrophy, heat, redness, or instability.  There was active motion in the metatarsophalangeal joint of the right great toe.  Palpation of the plantar surface of the right foot revealed slight tenderness.  Pulses were normal, as was motor and sensory function in the lower extremities.  Right lower extremity reflexes were normal.  There was no discoloration or edema of the feet, and skin texture was normal.  There was no evidence of fungal infection, ulceration, deformity, atrophy, loss of tissue, loss of digits, or abnormal temperature.  Skin moisture was also normal to touch, and there were no missing nails or abnormal hair growth.  Right foot X-rays were normal, and the examiner ultimately changed the diagnosis from "bilateral foot condition with numbness and pain due to cold injury" to bilateral plantar fasciitis, status post cold injury.  The examiner then indicated that the Veteran said he did not have Raynaud-like vascular problems, atrophic skin changes, nail changes, chronic fungal infections, hair less, cancer of the frostbite scar, or osteoarthritis-like involvement.  

May 2013 right foot X-rays showed hammertoe configuration of the toes, mild degenerative arthritis, and vascular calcification with a type typically associated with diabetes.  In addition, the report indicates bone density may be mildly diminished without fractures or bony lesions.

At the outset, the Board notes that many of the symptoms considered in the relevant criteria (i.e., pain, numbness, cold sensitivity, nail abnormality, color changes, etc.) are capable of lay observation.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  He has reported aching, cold sensitivity, and foot pain, satisfying the threshold requirement for a compensable rating under Code 7122.  He is also competent to describe disturbances of nail growth and color changes.  The Board finds no reason to question the veracity of his reports, and they are credible and competent evidence in this matter.  Accordingly, the Board finds the evidence reasonably shows the Veteran's residuals of right foot cold injury are manifested by pain, cold sensitivity, nail abnormalities, and color changes, and warrant a 30 percent rating for the period prior to December 6, 2013.

The Board has considered whether referral of this matter for extraschedular consideration is indicated.  There is no objective evidence or allegation suggesting that the schedular criteria are inadequate (the symptoms and impairment shown are all encompassed by the schedular criteria for the rating that has now been assigned) or that the disability picture presented by the Veteran's right foot cold injury residuals is exceptional.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).  Consequently, referral for extraschedular consideration is not warranted.  

As the Veteran has withdrawn his appeal seeking a TDIU rating that matter is not for consideration.

Withdrawal of Appeal

The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary.  38 U.S.C.A. § 7104.  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.  An appeal may be withdrawn by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter.  38 C.F.R. § 20.204.  A withdrawal of an appeal is effective when received.  38 C.F.R. § 20.204(b)(3).

Here, in February 2014 correspondence, after he had perfected an appeal seeking a TDIU rating but before promulgation of a Board decision in the matter, the Veteran expressed his intent to withdraw his appeal in the matter.  There is no allegation of error in fact or law for the Board to consider in this matter.  Accordingly, the Board does not have further jurisdiction to consider an appeal in the matter, and the appeal must be dismissed.


ORDER

The appeal to reopen a claim of service connection for a heart disability (manifested by cardiomegaly and atrial fibrillation) is granted.

A 30 percent rating is granted for the Veteran's residuals of a right foot cold injury for the period prior to December 6, 2013, subject to the regulations governing payment of monetary awards.

The appeal seeking a TDIU rating is dismissed.


REMAND


When the Board reopens a claim that the AOJ did not, the matter must be remanded for AOJ initial de novo consideration unless there is a waiver of such consideration by (or on behalf of) the appellant, or the Board finds that the appellant would not be prejudiced by from the Board's de novo adjudication of the claim in the first instance.  Hickson v. Shinseki, 23 Vet. App. 394, 399-401 (2010).  The appellant has not waived AOJ initial consideration of the reopened claim, and the Board is unable to find that she would not be prejudiced by denying AOJ initial consideration of the claim.  Therefore, a remand for development and AOJ initial de novo consideration of the reopened claim is necessary.

In addition, the Board finds that the new evidence received has raised medical questions that require resolution before the matter may be adjudicated on its merits.  The evidence as it stands suggests the Veteran had an unspecified heart disability manifested by cardiomegaly and atrial fibrillation, and a critical first question that must be resolved is whether his symptoms constituted or were otherwise indicative of ischemic heart disease such as to trigger the presumptive provisions of 38 U.S.C.A. § 1116.  Furthermore, if such symptoms do not establish ischemic heart disease, the evidence raises alternate theories of entitlement that require medical opinions.  It is not in dispute that the Veteran was exposed to herbicides in service.  Regardless of whether he is found to have had a disease listed as associated with such exposure (and presumed to be service connected), the appellant is not precluded from showing that the claimed heart disability was directly related to exposure to herbicides by direct proof of causation.  Second, prior to his death, the Veteran also alleged that his heart problems were related to ingestion of salt tablets during service.  Finally, private and VA medical evidence suggests the Veteran's heart problems may have been secondary to his service-connected PTSD.  Notably, the only medical opinion in the record which addresses the nature and etiology of the Veteran's heart disability is incomplete (and inadequate).  It addresses only whether or not there is a relationship between the Veteran's heart problems and his PTSD, and does not touch upon the other theories of entitlement discussed above.  Furthermore, to the extent that it addresses the secondary service connection theory of entitlement, it merely indicates that the issue could not be resolved without resort to speculation (and is, in essence, a non-opinion).  Therefore, another medical advisory opinion is needed.

Accordingly, the case is REMANDED for the following:

1. The AOJ should arrange for the Veteran's record to be forwarded to an appropriate physician (internist or cardiologist, e.g.) for review and an advisory medical opinion regarding the likely etiology of his cardiomegaly and atrial fibrillation.  Based on a review of the entire record, the examiner should provide opinions that respond to the following:

a. Were the Veteran's cardiomegaly and/or atrial fibrillation at least as likely as not (a 50% or better probability) manifestations of an ischemic heart disease?

b. If not, were the cardiomegaly and/or atrial fibrillation cardiac disability entities of themselves, or manifestations of an underlying heart disability entity?  If the latter, please identify the heart disability entity by diagnosis.

c. Please identify the likely etiology of any such heart disability entity diagnosed.  Specifically, is it at least as likely as not (a 50% or better probability) that it was (i) related to his military service (to include as due to ingestion of salt tablets therein), or (ii) either caused or aggravated by service-connected PTSD?

All opinions must include rationale.

2. The AOJ should then review the record and readjudicate this claim.  If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the appellant and her representative opportunity to respond, and return the case to the Board.

The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs