Citation Nr: 1623693 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 14-09 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a respiratory disability. 2. Entitlement to an initial compensable rating for a bilateral hearing loss disability. 3. Entitlement to a higher initial rating for coronary artery disease, rated as 10 percent disabling prior to August 8, 2014 and noncompensable thereafter. 4. Entitlement to a higher initial rating for depressive disorder, rated as 30 percent disabling. 5. Entitlement to an effective date prior to July 29, 2011 for the grant of service connection for depressive disorder. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. The case was transferred to the RO in Roanoke, Virginia prior to certification to the Board. The July 2012 rating decision, in pertinent part, granted service connection for bilateral hearing loss, coronary artery disease and depressive disorder, but denied entitlement to service connection for a respiratory disability. The Veteran appealed the initial ratings assigned for bilateral hearing loss, coronary artery disease and depressive disorder; the effective date of service connection for depressive disorder; and the denial of service connection for a respiratory disability. A September 2014 rating decision reduced the initial 10 percent rating assigned for coronary artery disease to a noncompensable rating, effective August 8, 2014. The Veteran appeared at a hearing before the undersigned in December 2015. During the December 2015 hearing, the Veteran's representative raised the issue of clear and unmistakable error (CUE) within the context of the effective date of service connection for depressive disorder. The undersigned advised the Veteran to file a CUE claim with the Agency of Original Jurisdiction (AOJ) regarding a January 1973 rating decision that denied entitlement to service connection for an acquired psychiatric disorder as the issue was not within the Board's jurisdiction because it had not been adjudicated by the AOJ in the first instance. In December 2015, the Veteran filed a CUE claim with the AOJ as directed. In January 2016, the AOJ issued a rating decision denying an earlier effective date for depressive disorder; however, the January 2016 did not address the merits of the Veteran's allegation of CUE with respect to the January 1973 rating decision. Thus, the issue of whether a January 1973 rating decision that denied entitlement to service connection for an acquired psychiatric disorder contained CUE has been raised by the record, but has not been adjudicated by the 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). This decision reinstates a 10 percent rating for coronary artery disease effective August 8, 2014; however, the Board finds a new examination is necessary to determine whether a rating in excess of 10 percent is warranted for coronary artery disease at any point during the appeal period. Thus, the issue of entitlement to an initial rating in excess of 10 percent for coronary artery disease remains on appeal. The issues of entitlement to service connection for a respiratory disability and higher initial ratings for bilateral hearing loss, coronary artery disease and depressive disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Since August 31, 2010, the Veteran has been required to continuously take medication for a heart condition. 2. A final January 1973 rating decision denied entitlement to service connection for an acquired psychiatric disorder; the Veteran filed a claim to reopen the issue of entitlement to service connection for an acquired psychiatric disorder on July 29, 2011, which was subsequently granted as depressive disorder. CONCLUSIONS OF LAW 1. The criteria for at least a 10 percent rating for coronary artery disease have been met since August 31, 2010. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.104 Diagnostic Code 7005 (2015). 2. The criteria for an effective date prior to July 29, 2011 for the grant of service connection for depressive disorder have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Higher Initial Rating for Coronary Artery Disease Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. A staged rating is currently in effect for the Veteran's service-connected coronary artery disease, as it is rated as 10 percent disabling prior to August 8, 2014 and noncompensable thereafter. A September 2014 rating decision implemented the staged rating based primarily on an August 2014 VA examination report, which indicated the Veteran does not have coronary artery disease or any other form of ischemic heart disease. Diagnostic Code 7005 provides the rating criteria for coronary artery disease. A 10 percent rating is warranted for coronary artery disease resulting in a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating, is warranted for coronary artery disease resulting in a workload greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for coronary artery disease resulting in 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. A 100 percent rating is warranted for coronary artery disease resulting in chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; LVEF of less than 30 percent. 38 C.F.R. § 4.104. VA treatment records from 2015 indicate the Veteran continues to be treated for chronic ischemic heart disease. He has been prescribed daily aspirin therapy and the beta-blocker Atenolol to control this condition throughout the appeal period. He is entitled to service connection for coronary artery disease under Diagnostic Code 7005; therefore, at least a 10 percent rating is warranted for the disability because the diagnostic code provides a minimum 10 percent rating when continuous medication is required. As such, the stage rating currently assigned for the disability is not appropriate, and a 10 percent rating is assigned from the effective date of service connection, August 31, 2010. During the August 2015 hearing, the Veteran reported he has recently experienced increased dyspnea, fatigue and angina with physical activity; therefore, the Board finds a new examination is necessary to determine whether a rating in excess of 10 percent is warranted at any point in the appeal period. As such, the issue of entitlement to an initial rating in excess of 10 percent for coronary artery disease remains on appeal, a discussion of VA's duties to notify and to assist is unnecessary at this point with regard to the appeal of the initial rating assigned for coronary artery disease. II. Earlier Effective Date for Service Connection for Depressive Disorder An effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C.A. §5110(a); 38 C.F.R. § 3.400(q)(1)(ii); see also Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) (noting for an award based on a claim reopened after a final adjudication, the effective date is typically the date that the request to reopen was filed). There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant service department records. See 38 U.S.C.A. §5110(i); 38 C.F.R. §§ 3.105, 3.156 (c). A January 1973 rating decision denied entitlement to service connection for an acquired psychiatric disorder, claimed as depression. The Veteran did not file a notice of disagreement or submit new and material evidence regarding the claim within one year of notice of the decision. 38 U.S.C.A. §§ 7105(b)(1); 38 C.F.R §§3.156(b), 20.1103. Thus, the decision became final. As the rating decision issued in January 1973 is final, the effective date of the grant of service connection based on the reopened claim cannot, by regulation, be earlier than the date of the Veteran's request to reopen after the final disallowance of his earlier claim. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii). There is no indication service department records have been received that were not previously of record at the time of the January 1973 rating decision, as the rating decision specifically referenced findings in the Veteran's service records regarding his discharge from service due to depression. See 38 C.F.R. § 3.156 (c). As noted in the introduction, the Veteran's CUE claim with respect to January 1973 is being referred to the AOJ for initial adjudication. However, there is no evidence that suggests an effective date prior to July 29, 2011 for the grant of service connection for depressive disorder is warranted based on the direct appeal of the July 2012 rating decision that granted the reopened claim for an acquired psychiatric disorder, as this was the date of the Veteran's request to reopen the claim. The 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), 3.159, 3.326(a). In this case, VA provided adequate notice in a letter sent to the Veteran in August 2011. VA has also satisfied the duty to assist. The outcome in this appeal turns on the date the Veteran filed his claim. A medical opinion or examination is not required to determine when the claim was filed. The Veteran has not identified any additional evidence that could show an earlier date for his claim beyond the evidence already of record. Thus, further assistance would not likely aid the Veteran in prevailing in his appeal. ORDER Entitlement to a 10 percent rating for coronary artery disease, effective August 31, 2010, is granted. Entitlement to an effective date prior to July 29, 2011 for the award of service connection for depressive disorder is denied. REMAND VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). "An opinion is adequate where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (internal citations and quotations omitted). If a VA examiner finds that there is no current disability when a claimed disability has been diagnosed during the appeal period, the Board is required to obtain a medical opinion that resolves the discrepancies between the two potentially competing medical opinions, to include whether the diagnosis was made in error or the diagnosed condition is in remission. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, a June 2012 VA examiner determined the Veteran does not have a current respiratory disability. Yet, the record includes private treatment records that contain several notations regarding a diagnosis for "farmer's lung." Further, the Veteran was recently diagnosed as having chronic pulmonary obstructive disease (COPD). As the June 2012 examination report does not address these diagnoses, it is inadequate to make an informed decision on the Veteran's claim of entitlement to service connection for a respiratory disability. During the December 2015 hearing, the Veteran reported increased symptomatology related to his service-connected depressive disorder, coronary artery disease and bilateral hearing loss disability. A November 2012 private psychiatric evaluation shows increased functional impairment when compared to an earlier June 2012 report from a VA examiner, who determined a mental condition had been formally diagnosed but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. With regard to coronary artery disease, VA treatment records from 2015 show the Veteran continues to be treated for ischemic heart disease even though his most recent VA examiner in August 2014 questioned the validity of the diagnosis and did not fully address the functional impairment resulting from the disability. The Veteran provided a December 2015 private audiological examination to support his contentions regarding increased bilateral hearing loss. There are also notations in his VA treatment records regarding complaints of bilateral ear pain in recent months. VA last provided an audiological examination in June 2012. Thus, new examinations are necessary to make an informed decision regarding the current level of functional impairment resulting from the Veteran's service-connected disabilities. See Snuffer v Gober, 10 Vet. App. 400, 403 (1997) (holding the duty to assist required VA to provide an examination based on claimant's assertion of increased symptomatology since his examination two years prior to the Board's decision). The Veteran's representative also indicated during the December 2015 hearing that there may be outstanding VA treatment records from the VA Medical Center in Richmond, Virginia. VA's duty to assist requires efforts to ensure all available VA treatment records have been obtained and associated with the Veteran's claims file. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the Veteran's claims file, to include, but not limited to, records from the VA Medical Center in Richmond, Virginia. 2. Schedule the Veteran for a new VA respiratory conditions examination to determine whether he has a current respiratory disability that is at least as likely as not (a degree of probability of 50 percent or higher) the result of a disease or injury in service, to include exposure to asbestosis. The Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged by the examiner. The examination report must include a complete rationale for any opinion provided. The examiner is asked to specifically address the diagnoses of farmer's lung and COPD in the record and opine as to whether the diagnoses were made in error or the diagnosed condition is in remission, if not found currently. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should so state and explain why an opinion cannot be provided without resorting to speculation. 3. Schedule the Veteran for new examinations to measure the current severity of his service-connected bilateral hearing loss, coronary artery disease, and depressive disorder. 4. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The Veteran 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). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs