Citation Nr: 1609175 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 08-18 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a renal disability, to include as secondary to hypertension. 3. Entitlement to an evaluation in excess of 10 percent for hypertension. 4. Entitlement to an initial evaluation in excess of 10 percent for a heart attack with stent implantation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from July 1971 to May 1974 and from August 1977 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In August 2011 the Veteran testified during a hearing at the RO before an acting Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript is of record. The Veteran's representative wrote in February 2016 that the Veteran does not wish to appear at another hearing. This claim was previously before the Board in August 2012, at which time the Board remanded it for additional development. Additional development is needed on the issue of service connection for a renal disability before that claim can be decided on the merits. The issues of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder, and bilateral hearing loss, and to an increased evaluation for bilateral plantar fasciitis, have been raised by the record in May 2014 and October 2015 statements, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of service connection for a renal disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, tinnitus had its onset during active service. 2. The Veteran's diastolic pressure has been predominantly less than 110 and his systolic pressure has been predominantly less than 200. 3. The Veteran's heart attack with stent implantation is characterized by a workload of 9 to 10 METs. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 2. The criteria for an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101 (2015). 3. The criteria for an initial evaluation in excess of 10 percent for a heart attack with stent implantation have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7006 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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, 3.326(a) (2015). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The claim for an increased evaluation for a heart attack with stent implementation arises from disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Prior to initial adjudication of the Veteran's claim for an increased evaluation for hypertension, a letter dated in May 2006 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records (STRs), service personnel records, VA treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations in March 2013, the reports of which have been associated with the claims file. The examiner provided well-reasoned rationales. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs 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 hearing, the VLJ noted the basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection will also be presumed for certain chronic diseases, including other organic diseases of the nervous system, i.e tinnitus, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2015). The STRs do not show complaints or a diagnosis of tinnitus. The service personnel records show that during service the Veteran was a rifleman and a guard. Therefore, the record shows that he was exposed to acoustic trauma during service. The Veteran testified at the August 2011 hearing that he has had constant tinnitus in both ears that had been present since military service. At a March 2013 VA audiological examination, the Veteran reported constant ringing in his ears that began in military service. The examiner did not provide an opinion on etiology. The Veteran is competent to report having tinnitus since military service, and the Board finds him to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2015). The record is at least in equipoise regarding whether the Veteran has had recurrent tinnitus since his active service. Therefore, the claim for service connection is granted. III. Increased Evaluations Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R., Part 4 (2015). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Hypertension The Veteran is seeking an evaluation in excess of 10 percent for his service-connected hypertension. Pursuant to DC 7101, a 20 percent rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more, and the maximum schedular rating of 60 percent is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. §4.104, Diagnostic Code 7101. Private treatment records from May 2006 and May 2007 show blood pressure readings of 150/90 and 122/90 respectively. The Veteran testified at the August 2011 hearing that he had been taken off of hydrochlorothiazide because of medical concerns. His blood pressure than rose to close to 200/110. At a March 2013 VA examination, blood pressure readings were 106/70, 106/72, and 108/70. The Veteran was taking amlodipine, lisinopril, and hydrochlorothiazide for high blood pressure. At no time has the diastolic pressure been predominantly 110 or more or the systolic pressure predominantly 200 or more. The Board therefore finds that the Veteran's hypertension most nearly approximates the criteria for a 10 percent rating. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.104, Diagnostic Code 7101. B. Heart Attack with Stent Implant The Veteran is seeking an evaluation in excess of 10 percent for a heart attack with a stent implant. Under Diagnostic Code 7006, a myocardial infarction is rated 100 percent for three months following the myocardial infarction, documented by laboratory tests. Thereafter, a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required is rated 10 percent. A workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray is rated 30 percent. More than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent is rated 60 percent. 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 is rated 100 percent. The Veteran had a 100 percent evaluation in effect from October 31, 2005 through October 31, 2006. Thereafter, he has been rated 10 percent. At May 2007 private treatment the Veteran was noted to have coronary artery disease and to be stable on his current medical therapy. At the August 2011 hearing the Veteran testified that he had been advised by his doctor since 2007 to not do any jogging or running due to the severity of his heart attack. He also had fatigue on a daily basis and took a nap between noon and 4:00 pm on a daily basis. His medications made him drowsy. The Veteran had a VA examination in March 2013. It was noted that on a Bruce protocol in February 2013 he had a cardiac workload of 9 to 10 METs. The exercise testing was unremarkable for angina and ischemic ST segment abnormalities. Electrocardiogram results were normal. The record does not show that a workload of greater than 5 METs but not greater than 7 METs results is dyspnea, fatigue, angina, dizziness, or syncope. Furthermore, there is no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Therefore, the Veteran does not qualify for an evaluation in excess of 10 percent for a heart attack with stent implantation. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.104, Diagnostic Code 7006. C. Other Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Initially, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. The severity and symptomatology of the Veteran's hypertension and heart attack with stent implantation are contemplated by the rating schedule, and it is noted that the rating schedule for the latter includes consideration of dyspnea, fatigue, angina, dizziness and syncope. There is also no showing that hypertension or the heart attack with stent implantation have caused marked interference with employment or frequent periods of hospitalization. Also, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Section 3.321(b)(1) performs a gap-filling function, accounting for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented. Under the present decision of the Board, the Veteran is also service-connected for tinnitus, sarcoidosis, and bilateral plantar fasciitis. However, there are no disabilities that have not been attributed to a specific service-connected condition, and no indication the ratings assigned do not represent the disability experienced. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. In light of the holdings in Fenderson and Hart, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected hypertension and heart attack with stent implantation, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period have the disabilities on appeal been more disabling than as currently rated under the present decision of the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the record does not reflect he is unemployable due to his service-connected hypertension and heart attack with stent implantation. The March 2013 VA examiner felt that neither disability affected the Veteran's ability to work. Thus, consideration of a TDIU is not warranted. ORDER Service connection for tinnitus is granted. An evaluation in excess of 10 percent for hypertension is denied. An initial evaluation in excess of 10 percent for a heart attack with stent implantation is denied. REMAND The Veteran is seeking service connection for renal insufficiency. The STRs show that at April 1973 treatment he was diagnosed with hematuria secondary to a retained urethral stone. Post-service private records beginning in May 2004 show a diagnoses of renal insufficiency. The Veteran testified at the August 2011 hearing that during service he passed a kidney stone. At a March 2013 VA renal examination the Veteran was diagnosed with ureterolithiasis. The examiner noted that the lab assessment was normal in regards to renal insufficiency, and did not feel that there was current renal insufficiency. He opined that there was no evidence from the examination or laboratory testing that the Veteran had a current chronic renal condition due to hypertension or any other condition. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The March 2013 VA examination is inadequate because the examiner did not provide an opinion regarding whether the renal insufficiency that was diagnosed during the claims period is related to service on a direct basis or whether it had been caused or aggravated by hypertension. In addition, January 2015 and April 2015 VA treatment records show that the Veteran's creatinine level was above normal. Therefore, the Veteran must be scheduled for a new examination before the claim can be decided on the merits. In addition, in a May 2014 statement, the Veteran asserted entitlement due to toxic exposures at Camp Lejeune. The Veteran's service personnel records show that he was stationed at Camp Lejeune during service for more than 30 days. As such, on remand the RO must also consider whether service connection is warranted on this basis as VA recognizes a relationship to toxic exposure at Camp Lejeune and renal toxicity. See 38 C.F.R. § 17.400 (2015). The record shows that the Veteran receives treatment through VA. VA treatment records to April 2015 have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from April 2015 to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service renal disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other medical evidence not already of record relating to his claim. He should be provided an appropriate amount of time to submit this evidence. There must be two attempts made to request private treatment records, and all attempts must be documented in the claims file. 3. Obtain VA treatment records from April 2015 to the present. 4. Thereafter, schedule the Veteran for a VA examination to determine the current nature, onset and likely etiology of any renal disability. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not that the Veteran's renal disability is related to service or had its onset within one year of discharge from active duty. The examiner must also state whether it is at least as likely as not that the Veteran has a renal disability related to Camp Lejeune service. This opinion should include the renal insufficiency diagnosed beginning in 2004 even if the examiner does not feel it is currently present. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's renal disability was caused or aggravated by his service-connected hypertension. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so, to include a recitation of any missing facts necessary to render a non-speculative opinion. 5. Then readjudicate the appeal, to include consideration of whether service connection is warranted based on the Veteran's documented service at Camp Lejeune. If the benefit sought on appeal is not granted in full, the RO should issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs