Citation Nr: 1609196 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 12-25 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether the severance of service connection for ischemic heart disease (IHD) was proper. 2. Whether the severance of entitlement to special monthly compensation (SMC) based on housebound criteria was proper. 3. Entitlement to increased initial evaluation for IHD. 4. Entitlement to an effective date earlier than December 19, 2007, for grant of service connection for IHD. REPRESENTATION Appellant represented by: Calvin Hansen, attorney ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska that granted service connection for IHD, with an initial rating of 10 percent effective from August 26, 2008. Also on appeal is a March 2011 rating decision that granted service connection for IHD effective from December 19, 2007, granted a 100 percent rating for IHD effective from February 25, 2011, and also granted entitlement to SMC based on housebound criteria from that date. Finally, also on appeal is a February 2013 rating decision that severed service connection for IHD and also severed entitlement to SMC. The RO issued a rating decision in February 2014 that in relevant part denied service connection for right and left upper extremity peripheral neuropathy; granted service connection for right and left lower extremity peripheral neuropathy, with initial ratings of 10 percent each; and, denied entitlement to a total disability rating due to individual unemployability. The Veteran submitted a Notice of Disagreement (NOD), and the RO issued a Statement of the Case (SOC) in May 2014. The Veteran did not thereafter perfect an appeal. Those issues are accordingly not before the Board. In January 2016, the Veteran also filed a notice of disagreement regarding the evaluation and effective date of his service connected chronic renal disease. The RO continues to take appropriate action with regard to that matter. Thus, no action for this matter is required. In July 2015 the Board remanded the issues identified on the title page to the Agency of Original Jurisdiction (AOJ) for additional development, which has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran was granted service connection for IHD based on a diagnosis that was clearly and unmistakably erroneous. 2. Severance of service connection for IHD results in the Veteran no longer meeting the schedular threshold for SMC at the housebound rate, and the Veteran is not shown to be functionally housebound. 3. Severance of service connection for IHD renders moot the questions of entitlement to increased initial evaluation and entitlement to earlier effective date for service connection for such disability. CONCLUSIONS OF LAW 1. Service connection for IHD was properly severed, and the requirements for restoration of service connection have not been met. 38 U.S.C.A. § 5109A (West 2015); 38 C.F.R. § 3.105 (2015). 2. Entitlement to SMC at the housebound rate was properly severed, and the requirements for restoration of such benefits have not been met. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2015). 3. The requirements to establish entitlement to increased evaluation for IHD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.104, Diagnostic Code 7005 (2015). 4. The requirements to establish entitlement to an effective date earlier than December 19, 2007, for grant of service connection for IHD have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). The disability-rating and effective-date issues adjudicated in this decision arise from an original grant of service connection. In Dingess/Hartman v. Nicholson, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify has been satisfied in regard to those issues. Turning to the issue of severance of service connection, when such action is considered warranted a rating proposing severance will be prepared, and the claimant will be notified of the contemplated action and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. 38 C.F.R. § 3.105(d) (2015). The Veteran was provided the requisite 60-day notice in August 2012. The record also reflects that the Veteran has been provided appropriate assistance in developing his claim. VA has obtained the Veteran's service treatment record as well as post-service records from the Social Security Administration (SSA) and from those VA and non-VA providers the Veteran identified as having treated him for heart-related symptoms. The Board previously reviewed the file and determined that medical examination was warranted to obtain a clear medical opinion as to whether the Veteran has diagnosed IHD. The required examination was performed in September 2015, and the requested medical opinion was provided. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran asserts that the September 2015 VA examination is inadequate because the examiner purportedly did not provide an opinion in regard to whether it is clear, unmistakable and undebatable that his heart condition is not related to herbicide exposure in service. The Board notes however that the examiner specifically stated the Veteran clearly, unmistakably and undebatably does not have a heart condition qualifying as IHD. The examiner also stated the Veteran does not have any diagnosed heart condition, thereby rendering moot the need for an opinion as to whether such condition is related to herbicide exposure. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal. Evidence and Analysis Once service connection has been granted, it can be severed only upon VA's showing that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(d); see also Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997). Clear and unmistakable error (CUE) has been defined as "a very rare and specific kind of 'error.' It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). When VA seeks to sever service connection, section 3.105(d) imposes the same burden of proof that is placed on a claimant who, section 3.105(a), seeks to have an unfavorable decision overturned. See Baughmann v. Derwinski, 1 Vet. App. 563, 566 (1991). In accordance with section 3.105(a), to determine whether CUE was present in a prior decision, either the correct facts, as they were known at the time, must not have been before the adjudicator (i.e., more than a simple disagreement of how the facts were applied) or the statutory and regulatory provisions extant at the time must have been incorrectly applied. The error must be undebatable and of the sort that, had it not been made, would have manifestly changed the outcome at the time it was made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Unlike section 3.105(a), however, section 3.105(d) does not limit the reviewable evidence to that which was before the RO at the time the original adjudication was made. See Stallworth, 20 Vet. App. at 482; Daniels, 10 Vet. App. at 480, Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997). The regulation specifically allows a change in medical diagnosis to serve as a basis for severance, and the Court in Venturella reasoned that such language clearly contemplates the consideration of evidence acquired after the original grant of service connection: "If the Court were to conclude that ... a service connection award can be terminated pursuant to 38 C.F.R. § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible position of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record. Venturella, 10 Vet. App. at 342-43. SMC at the housebound ("S") rate may still be payable if the veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue through his or her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). This case turns on whether the Veteran has IHD, to include coronary artery disease (CAD), since such disease if diagnosed would be presumptively associated with the Veteran's exposure to herbicides in the Republic of Vietnam. In this case, the RO granted service connection for IHD by a rating decision in December 2010. The grant of service connection relied on treatment reports from the Omaha VA Medical Clinic showing the Veteran had been diagnosed with CAD; an effective date of August 26, 2008 was assigned because that was the earliest date that CAD was shown in medical records. The subsequent rating decision in March 2011 granted an effective date of December 19, 2007, for IHD, because evidence showed a diagnosis of CAD on that date; the same rating decision increased the rating for IHD to 100 percent disabling effective from February 25, 2011, and granted SMC at the housebound rate effective from that date based on the Veteran now having one service-connected disability rated at 100 percent (IHD) with additional disabilities totaling at least 60 percent (in this case, tinnitus and posttraumatic stress disorder, having a combined rating of 60 percent). The basis for the RO's action in severing service connection was a determination that the evidence of record fails to show a confirmed diagnosis of IHD. The regulation specifically allows a change in medical diagnosis to serve as a basis for severance. Venturella, 10 Vet. App. at 342-43. The question before the Board, accordingly, is whether the diagnoses of CAD on which the RO had relied in granting service connection were clearly and unmistakably erroneous. The Veteran had a VA carotid duplex study in October 2005 in which cardiac function was noted to be normal, including electrocardiogram (EKG). The study showed atherosclerotic disease of the left and right carotid arteries at the bifurcation. Identical results were noted in a VA carotid duplex study in July 2007, following recent placement of a carotid stent; the heart was again asymptomatic and EKG was again normal. A March 2006 VA treatment note states the Veteran had a history of carotid artery disease. A VA primary care treatment note in February 2007 lists "congestive heart fail unspesified [sic]" on the Veteran's current active problems list, although no heart condition is listed in the principal or secondary diagnosis sections. That notation continued to be carried on the VA active problems list although all clinical examinations showed the heart to be normal. In May 2007 the Veteran had a VA myocardial perfusion study that noted history of abnormal EKG. The resultant clinical impression was normal perfusion study, with left ventricular ejection fraction 50 percent. The Veteran was granted disability benefits by the Social Security Administration in September 2007. The list of his disabling conditions cites "arterial clogging" but is silent in regard to any heart condition. In December 2007 the Veteran's VA physician included a secondary diagnosis of "coronary artery disease - off Plavix, he is on aspirin." The rating decision in December 2010 granted service connection for IHD in reliance on the VA clinical records cited above. Thereafter the Veteran was scheduled for a VA heart examination in December 2010 but he failed to report and the examination was cancelled. The file contains a VA disability benefits questionnaire (DBQ) examination February 2011 in which the examiner, a physician, was asked to estimate, for the "established condition" of ischemic heart disease, when the heart condition began. There is no indication that the examiner reviewed the claims file or any other treatment records. The examiner stated the Veteran developed congestive heart failure in 2007, that had progressed to ischemic heart disease and congestive heart failure status post left carotid artery angioplasty and stent placement; however, the examiner also indicated by checkmark that the etiology of the Veteran's heart condition was "unknown." The examiner also stated that the severity of the disease could not be established because the Veteran had not attended the scheduled diagnostic appointment. In May 2012 the Veteran had another DBQ examination, also by a physician. The examiner reviewed the claims file and stated there is no documented evidence of diagnosed CAD. The Veteran is shown to have had carotid vascular disease in 2007, but this is different from coronary artery disease. The examiner noted that VA clinical notes refer to "congestive heart failure, not specified" but there is no other positive proof the Veteran truly had congestive heart failure. The examiner stated there was no documentation of percutaneous transluminal coronary angioplasty (PTCA)/percutaneous coronary intervention (PC) of any vessels. Further, the 2007 myocardial scan was normal, without evidence of ischemia. The May 2012 examiner stated that the February 2011 examination was likely completed via commentary and recollections by the Veteran, since there were inaccuracies as disclosed from current review of all medical records. It is unlikely the Veteran has true ischemic heart disease since there is no factual medical record to support the diagnosis. The diagnosis of congestive heart failure (CHF) also appears to be unusual, but without further documentation the origin of this term is unknown. In summary, the Veteran's current records do not support a true diagnosis of IHD; if the Veteran has had any other interventions, cardiac catheterizations or cardiologist visits these would further delineate any cardiac issues. Finally, the Veteran had a VA compensation and pension (C&P) examination of the heart in September 2015, performed by a cardiologist who reviewed the claims file and the Veteran's electronic VA treatment record. The examiner performed a clinical examination and stated that examination of the Veteran's heart, lungs, lower extremities, pulses, carotids, neurological and abdomen was all normal. The examiner stated the Veteran does not now have, and has not in the past had, a diagnosed heart condition. The examiner noted the Veteran had a history of prediabetes, tobacco abuse, hypertension and carotid artery stent; however, the Veteran had not had any known catheterization or coronary stents. In that regard, the stent in 2007 was carotid, not coronary. The Veteran described having chest pain, but echocardiogram in 2012 showed normal diastolic function and nuclear stress test showed ejection fraction of 71 percent with no evidence of ischemia or prior infarct. There is also no evidence of CHF. The examiner stated an opinion that it is clearly and unmistakably evident the Veteran does not have IHD, DHF or CAD, and does not have a heart condition that qualifies within the generally accepted medical definition of IHD. In October 2015 the Veteran had VA surgery to perform coronary artery bypass grafting (CABG). The clinical impression was unstable angina, multivessel CAD, diabetes mellitus, dyslipidemia, carotid artery disease status post stenting, hypertension and ongoing tobacco abuse. However, the preoperative and postoperative diagnosis for the surgery cited unstable angina, diabetes, hypertension, dyslipidemia, severe carotid disease status post carotic stent and peripheral vascular disease. Thus, the CABG does not show the actual presence of CAD, CHF or other form of IHD. The Board finds on review of the evidence above that the grant of service connection for IHD in December 2010 was clearly and unmistakably based on an erroneous diagnosis. The DBQ examiner in May 2012 and the C&P examiner in September 2015 demonstrated that the references to CAD or other IHD of record were inconsistent with the contemporaneous clinical findings; further, the C&P examiner stated a medical opinion that the Veteran clearly and unmistakably does not, and did not, have a heart condition that can be categorized as IHD. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). As true with any piece of evidence, the credibility and weight to be assigned to medical opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board observes that the DBQ examiner in May 2012 and the C&P examiner in September 2015 were demonstrably informed of the factual premises of the case and provided fully-articulated opinions supported by reasoned analysis; these opinions are accorded great probative value by the Board. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board assigns no probative value to the February 2011 DBQ examination, in which the examiner had been told to consider the diagnosis of IHD as having already been established; further, the subsequent examiners in May 2012 and September 2015 demonstrated that the diagnosis of IHD articulated by the examiner in February 2011 was erroneous. The severance of service connection for IHD renders moot the questions of entitlement to increased initial rating and entitlement to earlier effective date for such disease. Finally, regarding the question of severance of entitlement to SMC based on housebound criteria, such benefit requires the recipient to either be functionally housebound or to have a single service-connected disability rated at 100 percent and additional service-connected disabilities rated at 60 percent. The Veteran does not assert, and the evidence of record does not suggest, that he is functionally housebound. Severance of service connection for IHD results in the Veteran no longer having a single service-connected disability ratable at 100 percent, so SMC on that basis is no longer warranted. The Board notes that the criteria for SMC differ from the criteria for entitlement to total disability due to unemployability (TDIU). The regulations pertinent to TDIU allow VA to construe a "single service-connected disability" to include disabilities of one or both lower extremities or one or both lower extremities; disabilities resulting from a common etiology (e.g., herbicides exposure) or single accident; disabilities affecting a single body system (e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); multiple injuries incurred in action; or, multiple disabilities incurred as a prisoner of war in computing whether a veteran meets the threshold 60-percent and 40-percent thresholds for TDIU. 38 C.F.R. § 4.16(a). However, the United States Court of Appeals for the Federal Circuit has held that the criteria relating to TDIU are not applicable to a claim for SMC, and that a Veteran must literally have at least one service-connected disability rated at 100 percent in order to qualify for SMC. Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011). Based on the evidence and analysis above the Board finds that service connection for IHD was properly severed; consequently, restoration of service connection and SMC cannot be granted. Similarly, because service connection for IHD was properly severed the claims for increased initial rating and earlier effective date for service connection for such disability are rendered moot and must be denied. ORDER Restoration of service connection for IHD is denied. Restoration of SMC based on housebound criteria is denied. Increased initial evaluation for IHD is denied. An effective date earlier than December 19, 2007, for grant of service connection for IHD is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs