Citation Nr: 1644816	
Decision Date: 11/29/16    Archive Date: 12/09/16

DOCKET NO.  08-33 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Whether the denial of service connection for an asthma disability by rating decision dated February 2, 1970 was clear and unmistakable error (CUE).

2.  Whether the denial of service connection for a low back disability by rating decision dated June 1, 2004 was CUE.

3.  Entitlement to an effective date earlier than October 25, 2010 for the grant of service connection for posttraumatic stress disorder (PTSD).

4.  Entitlement to an effective date earlier than April 28, 2014 for the grant of service connection for coronary artery disease.

5.  Entitlement to an initial rating in excess of 50 percent for PTSD.

6.  Entitlement to an initial rating in excess of 10 percent for coronary artery disease.

7.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from August 1965 to February 1966 and from June 1968 to August 1969.

These matters are before the Board of Veterans' Appeals (Board) on appeal of June 2007, June 2013 and December 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

In the June 2007 rating decision, the RO denied entitlement to a TDIU.

In March 2009, the Veteran testified before a Decision Review Officer (DRO) at the Indianapolis, Indiana RO.  A copy of the hearing transcript is of record.

The Board previously remanded the TDIU claim in January 2012, and later denied entitlement to TDIU in a July 2012 decision.  This decision was subsequently appealed by the Veteran and resulted in a May 2013 Joint Motion for Remand in the United States Court of Appeals for Veterans Claims (Court). 

In the June 2013 rating decision, the RO, in part, granted service connection for PTSD at an initial 30 percent disability evaluation, effective October 25, 2010.

In February 2014, the Board again remanded the issue of entitlement to a TDIU for additional development.

In the December 2014 rating decision, the RO, in part, granted service connection for coronary artery disease at an initial 10 percent disability evaluation, effective April 28, 2014 and found that no revisions were needed in the previous denials of service connection for a low back disability and an asthma disability.

In a March 2016 rating decision, the RO, in part granted an initial rating of 50 percent for the Veteran's service-connected PTSD, effective October 25, 2010.

The Board notes that since the increase from 30 to 50 percent did not constitute a full grant of the benefits sought, the issue of entitlement to an initial rating in excess of 50 percent for PTSD remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a February 1970 rating decision, the RO denied entitlement to service connection for asthma; the Veteran did not appeal that decision. 

2.  The February 1970 rating decision that denied entitlement to service connection for asthma was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision.

3.  In a June 2004 rating decision, the RO denied entitlement to service connection for a bone degeneration of the lumbosacral spine disability; the Veteran did not appeal that decision. 

4.  The June 2004 rating decision that denied entitlement to service connection for a bone degeneration of the lumbosacral spine disability was based on the record and the law which existed at the time and did not involve undebatable error which, had it not been made, would have manifestly changed the outcome of the decision.

5.  On October 25, 2010, the VA received the Veteran's formal application for benefits for service connection for PTSD.

6.  A June 2013 rating decision granted service connection for PTSD, effective October 25, 2010.  The effective date was the date of the claim for service connection.

7.  There is not clear evidence of any administrative irregularity by the agency of original jurisdiction, and VA received no communication from the Veteran, or any authorized representative, that constitutes a formal claim for PTSD prior to October 25, 2010.

8.  A December 2014 rating decision granted service connection for coronary artery disease at an initial 10 percent disability evaluation, effective April 28, 2014.  The effective date was the date that the Veteran's coronary artery disease was manifested.

9.  Resolving reasonable doubt in favor of the Veteran, his earliest diagnosis of coronary artery disease was on February 26, 2014.
 
10.  The Veteran's PTSD was manifested by symptoms consistent with occupational and social impairment with reduced reliability and productivity; neither occupational and social impairment with deficiencies in most areas nor total occupational and social impairment was shown.

11.  The Veteran's service-connected coronary artery disease was manifested by complaints of dyspnea on exertion, and a normal ejection fracture.


CONCLUSIONS OF LAW

1.  The February 1970 rating decision that denied entitlement to service connection for asthma was not clearly and unmistakably erroneous.  38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. §§ 3.105 (a) (2015).

2.  The June 2004 rating decision that denied entitlement to service connection for a bone degeneration of the lumbosacral spine disability was not clearly and unmistakably erroneous.  38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. §§ 3.105 (a) (2015).

3.  The criteria for an effective date, earlier than October 25, 2010, for the grant of service connection for PTSD are not met.  38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.114(a), 3.400 (2015).

4.  The criteria for an effective date of February 26, 2014, but no earlier, for the grant of service connection for coronary artery disease have been met.  38 U.S.C.A. §§ 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400 (2015).

5.  The criteria for an initial evaluation in excess of 50 percent for the Veteran's service-connected PTSD have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 9411 (2015).

6.  The criteria for an initial disability rating in excess of 10 percent for the Veteran's service-connected coronary artery disease have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a).  

Regarding the Veteran's claims for an earlier effective date, the resolution of the Veteran's appeals for an earlier effective date is dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits.  Consequently, no further development under the VCAA is warranted as there is no development which would change the outcome.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law).

Furthermore, the Board notes that, as a matter of law, the VCAA is not applicable to the claims that 1970 and 2004 rating decisions contained CUE. Indeed, the Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). 

Regarding the Veteran's claims for higher initial ratings, the RO provided notice to the Veteran in a July 2012 letter.

Even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced agent and has submitted argument in support of his claims.  These arguments have referenced the applicable law and regulations necessary for higher initial ratings.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  See, Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision.  The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran.  

As the Board will discuss in detail in the analysis below, the Veteran was provided with VA examinations in May 2013, August 2015 and September 2015.  The report of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  Thus, the Board finds that the May 2013, August 2015 and September 2015 VA examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Neither the Veteran nor his representative has contended otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2015); Barr, 21 Vet. App. at 312.

Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf.  The Board finds that no additional RO action to further develop the record on the claims is warranted.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 
 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

I.  CUE

Laws and Regulations

An unappealed rating decision is final based on the evidence of record (and may not be revised based on the record (unless it is shown that the decision involved CUE).  38 U.S.C.A. § 7105.  Where CUE is found in a prior RO decision, the prior decision will be reversed or revised.  For the purposes of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision.  38 U.S.C.A. 
§ 5109A; 38 C.F.R. § 3.105(a).

There is a three-pronged test for CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort "which, if it had not been made, would have manifestly changed the outcome at the time it was made;" (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). 

In this regard, the Board emphasizes that a CUE is a very specific and rare kind of "error."  It is the kind of error of fact or of law that, when called to the attention of later reviewers, compels the conclusion, with 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, 43-44 (1993). It is not mere misinterpretation of facts.  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). 

Determination of CUE must be based on the record and the law that existed at the time of the prior adjudication.  Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994); Damrel, 6 Vet. App. 242; Fugo, 6 Vet. App. 40 (1993); Russell, 3 Vet. App. 310.

A claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office.  Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994).  As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger.  Fugo, 6 Vet. App. at 44.  Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits.  Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). 

A disagreement with how facts were evaluated is inadequate to raise the claim of CUE.  Luallen v. Brown, 8 Vet. App. 92, 95 (1995). 

A failure in the duty to assist does not establish CUE.  See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002).  In Cook, the Federal Circuit emphasized that a purported failure in the duty to assist cannot give rise to clear and unmistakable error, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. In other words, to present a valid claim of CUE, the claimant cannot simply request that the Board reweigh or reevaluate the evidence.  Crippen v. Brown, 9 Vet. App. 412 (1996).  Further, an alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision.  See Elkins v. Brown, 8 Vet. App. 391, 396 (1995). 

The fact that medical knowledge was not advanced to its current state may not form the basis for a valid claim of CUE, because it is premised upon facts that were not then of record. Subsequently developed evidence may not be considered in determining whether error existed in the prior decision.  See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). 

Again, the mere misinterpretation of facts does not constitute CUE.  Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991).

A.  Asthma

Essentially, the Veteran argues that he is entitled to service connection for asthma because there was CUE in the February 1970 rating decision that denied service connection for asthma.  The Veteran's representative claimed in the initial July 2013 motion for revision based on CUE that while the Veteran was denied service connection for asthma as he had a preexisting respiratory disability, the record contained no clear and unmistakable evidence that the disability existed prior to service and contained no clear and unmistakable evidence that the disability was not aggravated by his service.  

Evidence considered by the RO in its February 1970 rating decision included service treatment records, a January 1968 letter from a private physician and a December 1969 VA examination report.

The Veteran's service treatment records contained an entry which noted an exacerbation of his asthma which the record noted existed since his childhood.

In a January 1968 letter, a private physician reported that he had first treated the Veteran for asthma when he was 9 and that he continued to treat him intermittently for asthma since that time.

On VA examination in December 1969, the VA examiner diagnosed the Veteran with asthma due to the sensitivity if the ragweed class.  The examiner noted that the Veteran had chronic difficulty with obstructive breathing in the ragweed season when he was a child but that when he had entered the service there was little sign of this condition.  However, when he had gotten to Hawaii, there was a marked exacerbation of his symptoms.  

The Veteran's representative argues CUE in the February 1970 because the record contained no clear and unmistakable evidence that the asthma disability actually existed prior to service and even if it was found to have preexisted service, the record contained no clear and unmistakable evidence that the disability was not aggravated by service.  

Having carefully reviewed the record, the Board finds that a reasonable adjudicator could have found that there was clear and unmistakable evidence to rebut the presumption of soundness in view of the service treatment records and the January 1968 private letter considered by the RO in its February 1970 adjudication.  Specifically, the evidence before the RO in February 1970 included service treatment records showing a history of preexisting asthma problems, along with a January 1968 private physician's letter showing that the claimed asthma disability preexisted service.

Here, while the Veteran has made allegations that the law in existence at that time was misapplied, the Board finds that it appears he simply disagrees with how the facts of the case were weighed or evaluated.  The Veteran's attorney has claimed that the record contained no clear and unmistakable evidence that the asthma disability existed prior to service and contained no clear and unmistakable evidence that the disability was not aggravated by his service.  However, the Board disagrees.  

The service treatment records and the private physician's letter demonstrate that the condition preexisted service.  Additionally, the RO's findings are otherwise consistent with the lack of any objective findings of any asthma disability at the time of the Veteran's August 1969 separation examination.  The February 1970 rating decision also noted that there was no indication of an asthma disability during the Veteran's separation examination and that a solitary in-service exacerbation with a subsequently asymptomatic period of more than a year did not establish aggravation.  These notations also support the reasonableness of the conclusion that an asthma disability clearly and unmistakably was not aggravated by military service.  In short, although the Veteran admittedly was not required to show evidence that his asthma disability worsened or was aggravated during or by service, as noted, it was nevertheless reasonable to conclude, based on the evidence of record, that a preexisting disorder was clearly and unmistakably not aggravated by service.

Consequently, this allegation of CUE goes to how the RO weighed and evaluated the facts before it in February 1970, which is in insufficient to establish CUE.  Thus, the Veteran has failed to show that the facts as known at the time of the February 1970 RO decision were undebatable or that 38 C.F.R. § 3.303(b) was incorrectly applied.  The Board, therefore, must find that the Veteran cannot prevail on this allegation of CUE as it goes to the weight the RO gave to the evidence of record at the time of the February 1970 decision.  See Russell, 3 Vet. App. at 313-14; Damrel, 6 Vet. App. at 246.


B.  Low Back

Essentially, the Veteran argues that he is entitled to service connection for a low back disability because there was CUE in the June 2004 rating decision that denied service connection for a back disability.  The Veteran's representative claimed in the initial July 2013 motion for revision based on CUE that while the Veteran was denied service connection for a bone degeneration of the lumbar spine disability as there was no evidence that the condition occurred in or was caused by his service, the record contained evidence that the Veteran had in-service back injuries which should have warranted service connection.  

The Veteran alleges that the RO erred in not finding that the conditions relating to his low back disability were related to service.  He claims that the June 2004 rating decision contained the requirements for service connection as there was evidence of a current disability, evidence of incurrence or aggravation of a disease or injury in service and evidence of a relationship or link to service.  The Veteran's representative noted that the December 1969 VA examination diagnosed the Veteran with bilateral spondylosis with grade I spondylolisthesis.

Although the Board finds that this allegation meets the legal requirements for specificity, it unfortunately finds that it is not a sufficient allegation of CUE because it essentially goes to the weight the RO gave the evidence of record at the time of the June 2004 decision.  The Board notes that the RO's June 2004 rating decision specifically finds that there was no showing of bone degeneration of the lumbosacral spine disability in service and no showing that this condition was caused by his service.  The Veteran's allegation of CUE essentially disagrees with these factual findings, which means he disagrees with the way the RO weighed and evaluated the evidence.

Consequently, this allegation of CUE goes to how the RO weighed and evaluated the facts before it in June 2004, which is in insufficient to establish CUE.  Thus, the Veteran has failed to show that the facts as known at the time of the June 2004 RO decision were undebatable or that 38 C.F.R. § 3.303(b) was incorrectly applied.  The Board, therefore, must find that the Veteran cannot prevail on this allegation of CUE as it goes to the weight the RO gave to the evidence of record at the time of the June 2004 decision.  See Russell, 3 Vet. App. at 313-14; Damrel, 6 Vet. App. at 246.

The July 2013 written argument by the Veteran's attorney further asserts that the RO did not recognize a pending claim in September 1983 for service connection for a low back disability.  The Veteran's attorney contends that the RO's June 2004 decision contains CUE based on the failure of the RO to adjudicate this September 1983 claim as the June 2004 RO only considered "bone degeneration of multiple joints" rather than the pending claim of service connection for a low back disability.  

VA's "failure to adjudicate a reasonably raised claim can be the basis of a CUE motion as to a final decision where the issue was relevant to a decision actually made."  Ingram. v. Nicholson, 21 Vet. App. 232, 254-55 (2007).  If VA merely failed to adjudicate a reasonably raised claim, however, the only issue to be considered would be entitlement to an earlier effective date based on the date of claim or the date entitlement arose, as opposed to whether CUE was committed because a reasonably raised claim "remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability."  See id. at 243.  CUE is a collateral attack on a prior, final decision and does not apply to pending claims.

Although an October 1983 rating decision denied service connection for allergies and a right elbow condition the June 2004 rating decision did not adjudicate the issue of entitlement to service connection for a low back disability.  However, the failure to adjudicate the claim for service connection for a low back disability, even if reasonably raised by the record, cannot be the basis of a CUE claim as to the final June 2004 rating decision.  

The Board notes that failure to adjudicate a claim cannot rise to the level of CUE in that failure to adjudicate is not outcome determinative. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); cf. Crippen v. Brown, 9 Vet. App. 412, 420 (1996) (where failure to reopen was not sufficient to plead CUE).  There can be no CUE finding absent a final and binding decision.  38 C.F.R. § 3.104.  See Norris v. West, 12 Vet. App. 413, 419-22 (1999) (RO failure to adjudicate an informally raised claim did not constitute a final disallowance of the claim and, therefore, there was no final adverse decision subject to CUE attack).  At the time of the July 2004 rating decision, there was no final adverse decision subjection CUE attack regarding service connection for a low back disability.  Accordingly, this line of argument by the Veteran's attorney is without legal merit.  

Additionally, the Board notes that the Veteran's representative did not specifically claim that there was CUE in the October 1983 rating decision which denied service connection for allergies and a right elbow condition.  Rather, the claim is specifically that there was CUE in the June 1, 2004 rating decision which denied service connection for a bone degeneration of the lumbosacral spine disability.  Notably, the Veteran's October 2003 claim for service connection also specifically indicated that he was claiming service connection for "bone degeneration".  

The Board also notes that in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the Federal Circuit found that where a veteran files more than one claim with the RO at the same time and the RO's decision acts (favorably or unfavorably) on one of the claims, but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.  The proper remedy under such circumstances is to file a timely notice of disagreement as to the RO's failure to address that claim.  

In sum, the Board finds that the correct facts, as known at the time of the June 2004 rating decision, were before the RO, and the law extant at the time was correctly applied.  Accordingly, there was no CUE in the June 2004 rating decision based on the Veteran's specific allegations of CUE.






II.  Earlier Effective Dates

Law and Regulations

Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

Specifically with regard to claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o) (2).

The terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).  Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim.  38 C.F.R. § 3.155(a).

VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim for service connection has already been allowed. 38 C.F.R. § 3.157.  Under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim.  The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  38 C.F.R. § 3.157(b).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). 

A.  PTSD

The earliest document that can be construed as a claim for service connection for PTSD is the formal application for benefits, VA Form 21-438 (Veteran's Statement in Support of Claim) which is date-stamped as having been received by the RO on October 25, 2010. 

The June 2013 rating decision granted service connection for PTSD at an initial 30 percent disability evaluation, effective October 25, 2010, which was the date that the claim was received.

Based on the evidence, the Board finds that an effective date earlier than October 25, 2010 for service-connected PTSD is not warranted as the claims file does not reflect that any communication filed prior to that date could be construed as a formal or informal claim for this specific benefit.

As the Veteran's claim for service connection for PTSD was not received within one year of his August 1969 separation from service, the effective possible effective date is the date of receipt of the Veteran's claim, October 25, 2010.  38 C.F.R. § 3.400(b) (2) (i).

Accordingly, the Board finds that there otherwise is no basis for the assignment of an effective date earlier than October 25, 2010, for the award of entitlement to service connection for PTSD.  The claims file does not reflect that any communication filed prior to that date could be construed as a formal or informal claim for this specific benefit.

Under these circumstances, the claim for an earlier effective date must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against assignment of an effective date earlier than October 25, 2010, for the award of entitlement to service connection for PTSD, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).

B.  Coronary Artery Disease

The December 2014 rating decision granted service connection for coronary artery disease at an initial 10 percent disability evaluation, effective April 28, 2014.  

The award of service connection was based on a liberalizing law pertaining to diseases associated with exposure to certain herbicide agents.  See 38 C.F.R. § 3.309(e) (2015) (listing ischemic heart disease as a disease that shall be service-connected even though there is no record of such disease during service for certain veterans, including those who were exposed to herbicide agents during service in the Republic of Vietnam).  Ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents effective August 31, 2010.  See 75 Fed. Reg. 53202 (Aug. 31, 2010). 

If a claim is reviewed within one year from the effective date of a liberalizing law or VA issue, benefits may be authorized from the effective date of a liberalizing law or VA issue.  38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p) (2015).

Although the effective date of the liberalizing law at issue is August 31, 2010, effective dates of certain awards of service connection are governed pursuant to the orders of a United States district court in the class-action case arising from Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991).  38 C.F.R. § 3.816.  The covered diseases are listed in 38 C.F.R. §3.816(b) (2).  Although ischemic heart disease is not listed in that section, the final rule made clear that the effective dates of awards of ischemic heart disease under the 38 C.F.R. § 3.309(e) are governed by the Nehmer provisions.  See 75 Fed. Reg. at 53203.

Where a Nehmer class member is entitled to disability compensation for a covered herbicide disease, and the claim was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose except as otherwise provided in paragraph (c)(3) of this section, which pertains to claims filed within one year from the date of separation from service.  See 38 C.F.R. § 3.816(c) (2).

A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) the claimant's application and other supporting statements and submission may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded.  Id. 

When affording the Veteran the benefit of the doubt, the Board finds that an effective date of February 26, 2014, but no earlier, for the grant of service connection for coronary artery disease is warranted. 

In this instance, the Veteran initially filed a claim for service connection for a heart disability that was received by VA in July 2005.

Service connection for a heart disability was subsequently denied in a December 2005 rating decision on the basis that there was no current heart disability.  Notably, an October 2005 VA general examination noted no history of heart disease.

The Veteran did not appeal this decision or submit any pertinent evidence within the appeal period so the denial became final.  

Prior to the December 2014 rating decision which granted service connection for coronary artery disease, the Veteran did not submit a claim to reopen his previously denied claim of entitlement to service connection for coronary artery disease.  Instead, the December 2014 rating decision considered the Veteran's claim based on a liberalizing law pertaining to diseases associated with exposure to certain herbicide agents.  See 38 C.F.R. § 3.309(e) (2015).

As noted above, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400. 

In the December 2014 rating decision, the RO granted service connection for coronary artery disease, effective April 28, 2014.  The RO noted that a diagnosis of coronary artery disease was first noted in a February 26, 2014 private treatment report which was received by VA on April 28, 2014.

However, the Board finds that an earlier effective date of February 26, 2014 is warranted as the Board finds that the February 2014 private treatment record is the earliest documented diagnosis of coronary artery disease.

While the Veteran had a previous claim for coronary artery disease, again, the effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later.  In this instance, the date that entitlement arose is later as the February 16, 2014 private treatment record is the first instance of a diagnosis of coronary artery disease.   See 38 C.F.R. § 3.400. 

The Veteran's has also pointed to a medical record ated April 6, 2011, asserting that the Veteran was seen for angina of cardiac origin, which should also supports an earlier effective date.  Review of records dated in April 2011, reflect that the Veteran experienced an episode of chest pain so painful that he was forced to pull over his car to the side of the road.  Initial notes do reflect that he called to report his symptoms by telephone, and a recommendation was made that it was very likely angina, cardiac in nature, and he was advised to go to the emergency room.  However, it was later determined that the chest pain was atypical for coronary artery disease, and a diagnostic testing revealed no evidence of ischemia.  The Board can find no other clinical evidence confirming the presence of ischemic heart disease until February 26, 2014. 

As such, the Veteran's claim of entitlement to an effective date of February 26, 2014 for the grant of service connection for coronary artery disease is warranted.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102, 3.400(b); Gilbert, supra.

III.  Higher Ratings

Laws and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2015).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2015). 

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2015).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2015).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. §4.7 (2015).

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  He is also competent to report symptoms of his PTSD and coronary artery disease disabilities.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe his symptoms and their effects on employment or daily activities.  His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal.

The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.

A.  PTSD 

In this case, the Veteran currently has an initial 50 percent disability rating under Diagnostic Code 9411 for his service-connected PTSD.

The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula.  See 38 C.F.R. § 4.130. 

Under the general rating formula for mental disorders, a 10 percent evaluation is warranted if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 

A rating of 30 percent is assigned when the Veteran exhibits occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affected the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.

A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id. 

The Board notes that in accordance with the general rating formula, a maximum 100 percent rating is applicable if the manifestations of the service-connected psychiatric disorder result in total occupational and social impairment.  Although the rating formula lists specific symptoms that are indicative of total impairment, the Court has held that the symptoms listed in the rating formula are only examples, and that evidence of those specific symptoms is not required to show that the veteran is totally disabled.  In rating a mental disability, VA is required to consider all symptoms that affect her social and occupational functioning, and not limit consideration to those symptoms listed in the rating formula.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In other words, the primary consideration is whether the manifestations of the service-connected psychiatric disorder result in total social and occupational impairment, regardless of whether the Veteran demonstrates the symptoms listed in the rating formula.

When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126 (2015).

One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)).  According to the DSM-IV, GAF scores ranging between 61 to 70 reflect some mild symptoms [e.g., depressed mood and mild insomnia] or some difficulty in social, occupational, or school functioning [e.g., occasional truancy, or theft within the household], but generally functioning pretty well, and has some meaningful interpersonal relationships.  GAF scores ranging from 51 to 60 reflect more moderate symptoms [e.g., flat affect and circumstantial speech, occasional panic attacks] or moderate difficulty in social, occupational, or school functioning [e.g., few friends, conflicts with peers or co- workers].  Scores ranging from 41 to 50 reflect serious symptoms [e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting] or any serious impairment in social, occupational or school functioning [e.g., no friends, unable to keep a job].  Scores ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech is at times illogical, obscure, or irrelevant] or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood [e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. 

While the rating schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores.  See 38 C.F.R. § 4.130 (2015). 

Factual Background and Analysis

The Veteran underwent a VA examination in May 2013.  The examiner indicated that the Veteran had a current diagnosis of PTSD with a GAF score of 63.  The Veteran's level of occupational and social impairment with regards to all medical diagnoses was best described as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  The Veteran reported being married to his fourth wife for 6 years and indicated that the relationship was "so so".  He had 2 adult daughters but reported that he did not talk to them very often.  He enjoyed fishing, shooting and raising animals.  He also reported that he had a good relationship with his wife's family and a good relationship with his oldest grandson.  He also noted that he talked to his one friend almost daily over coffee.  He last worked about 10 years ago as a truck driver.  He noted that he stopped working because of a shoulder injury and a doctor told him that he was unable to work.  He reported missing work for mental health reasons but also got along well with his coworkers.  He denied panic attacks, had a variable appetite and his level of interest in things was good.  He had a low energy level most days and got about 3 hours of sleep per night without medication.  He reported problems with irritability.  He was independent with activities of daily living and had no major problems with hygiene or self-care.  He described normal memory functioning but had mild problems with attention and concentration.  He denied suicidal ideation or intent.  He also denied hallucinations.  The examiner noted symptoms of depressed mood, anxiety and chronic sleep disorder.  

The Veteran underwent a VA examination in September 2015.  The Veteran's level of occupational and social impairment with regards to all medical diagnoses was best described as occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation.  The Veteran had been married for 8 years and described his marriage as "sometimes rocky".  The Veteran's wife noted that the Veteran rode his four-wheeler around their pond each day but that he no longer fished or tended to the farm animals.  Each morning, the Veteran drove to get coffee with a friend who was also a veteran.  The Veteran reported that he had been seeing his daughter and granddaughter more frequently and that he enjoyed their visits.  He belonged to the American Legion and Veterans of Foreign Wars where he had been volunteering a couple of years ago.  He quit because the things they wanted him to do conflicted with their schedules.  The Veteran had not worked in any capacity since prior to his last VA examination in 2013.  In 2002, he had a work injury while as a truck driver where he injured his left shoulder which caused him to be unable to work.  He had been compensated for this injury by his workplace and felt that the benefits were fair.  He denied missing work for mental health reasons.  He reported no significant interpersonal conflicts at his old job and in fact still communicated with 2 to 3 friends from his old job.  The Veteran reported that his mood had been negative most days.  He denied panic attacks but did notice that once or twice he noticed a generalized heaviness in his chest which he wondered if it might be related to stress.  He described more of an undercurrent of anxiety and characterized it as a restless feeling.  His appetite was good.  His level of interest in things and energy level were reportedly low most days.  His chronic pain bothered him during the night and he continued to have nightmares.  He averaged typically 5 to 6 hours of sleep a night.  He reported having mild problems with irritability.  He was independent with activities of daily living and had no problems with hygiene or self-care.  He described mild short term memory deficits.  He denied significant memory problems such as forgetting family members' names.  He had mild problems with attention and concentration.  He denied suicidal or homicidal ideation, plan or intent.  He also denied hallucinations.  The examiner noted that the Veteran demonstrated PTSD symptoms of depressed mood, anxiety, chronic sleep impairment and mild memory loss such as forgetting names, directions or recent events.  The examiner indicated that the Veteran was attentive and cooperative during the interview and there were no noticeable impairments in terms of ability to communicate with the examiner.  His thought patterns and expressions were generally linear, relevant and logical.  His mood was euthymic and his affect congruent with appropriate range.

The examiner opined that, with solely regards to his PTSD, the Veteran's ability to perform day to day activities, especially in a work setting, was mild-moderately impacted.  His ability to interact appropriately with others was moderately impacted by irritability but he demonstrated adequate impulse control.  Both the Veteran and his wife openly attributed the bulk of his limitations to be related to his physical limitations which seemed to be of particular focus to them.  Solely with regard to his mental health condition, the Veteran would perform better in work settings that are structured, yet loosely supervised and required little interaction with the public.

After reviewing evidence of record as a whole, the Board finds that the assignment of an initial disability rating greater than 50 percent for the Veteran's service-connected PTSD with is not warranted.

In this regard, the evidentiary record was negative for speech that was intermittently illogical, obscure or irrelevant; spacial disorientation; or near-continuous panic or depression affecting his ability to function independently.

Moreover, the rating criteria for a 70 percent evaluation require that a claimant be unable to establish or maintain social relationships.  The Veteran's social impairment during this period more closely contemplates the currently assigned 50 percent evaluation as he was married to his wife, had a relationship with his one daughter and granddaughter and had a close friend who he had coffee with every morning.  

The Veteran's judgment and thinking had also consistently been found to be intact and unimpaired and there was no evidence of delusions or impaired thought processes.  There was also no evidence of paranoia.  There are also no reported episodes of homicidal or suicidal ideation.

The Veteran's symptoms include depressed mood, anxiety, chronic sleep impairment and mild memory loss such as forgetting names, directions or recent events.  However, while the Board accepts that the Veteran's symptoms had effects on his functioning, the lay and medical evidence of record does not demonstrate significant deficiencies in most areas.  

Indeed, at no point in this time period did the VA examiners or any other examiner or treating physician find that the Veteran's symptoms caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as is required for the assignment of a 70 percent rating; or cause total occupational and social impairment, as is required for the assignment of a 100 percent rating.  

In fact, the Board notes that the May 2013 VA examiner assigned a GAF score of 63, which indicates mild symptoms.  The Board also notes that the May 2013 examiner specifically described the Veteran's symptoms as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication, which fits squarely for the criteria for a 10 percent evaluation for PTSD under the General Rating Formula.  Additionally, the September 2015 VA examiner specifically described the Veteran's symptoms as occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation, which fits squarely for the criteria for a 30 percent evaluation for PTSD under the General Rating Formula.  

Despite the fact that these descriptions actually correspond squarely with a lesser disability rating, the Board will still assign the initial 50 percent disability rating for PTSD.  However, an initial rating in excess of 50 percent is clearly not available based on these findings.

Thus, while the record demonstrates that the Veteran did have some social and occupational impairment which impacted his quality of life, the greater weight of evidence demonstrates that it is to a degree less that is contemplated by the initial 50 percent rating currently assigned.  Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the current initial 50 percent schedular rating.  While the Veteran had some of the criteria for a 70 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability does not exceed his current initial 50 percent rating.  Again, in determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned initial 50 percent rating.

Accordingly, this evidence demonstrates that the Veteran did not have deficiencies in most of the areas in the criteria for a 70 percent rating nor had he been shown to have most of the symptoms listed as examples in the criteria.  As the criteria for the next higher (70 percent) rating for a psychiatric disorder have not been met, it logically follows that criteria for an even higher rating (100 percent) have not been met.  

There is no showing that the Veteran had gross impairment of thought processes or communication, persistent delusions, exhibited grossly inappropriate behavior; persistent danger of hurting himself or others, intermittent inability to perform activities of daily living as a result of his psychiatric symptoms, or disorientation to time or place.  As discussed, the evidence also weighs strongly against finding that his disability was manifested by total social impairment as the Veteran had been able to maintain relationships with some of his family and a close friend.  Thus, the Board finds that the preponderance of the evidence is against the claim as the Veteran's symptoms more closely approximated the criteria for a 50 percent disability rating, and neither a 70 or 100 percent rating.

For all the foregoing reasons, the Veteran's claim for entitlement to an initial rating in excess of 50 percent for service-connected PTSD must be denied.  

As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

B.  Coronary Artery Disease

The Veteran has an initial 10 percent disability rating for his service-connected coronary artery disease under Diagnostic Code 7005 (arteriosclerotic heart disease (coronary artery disease)).

Diagnostic Code 7005 provides a 10 percent rating when a workload of greater than 7 metabolic equivalents (METs), but not greater than 10 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication is required.  A 30 percent rating requires a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram,  echocardiogram, or X-ray.  A 60 percent rating requires 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, which results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent.  A 100 percent rating requires documented CAD resulting in chronic congestive heart failure; or workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, Diagnostic Code 7005. 

One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.  38 C.F.R. § 4.104, Note (2).

Factual Background and Analysis

A February 2014 private treatment report noted that the Veteran had a diagnosis of coronary artery disease as he underwent a left heart catherization and a percutaneous coronary intervention.

The Veteran underwent a VA examination in August 2015.  The examiner noted a February 2014 diagnosis of coronary artery disease.  Continuous medication was required for control of the Veteran's heart disease as he was on Metoprolol and Aspirin.  There was no evidence of a myocardial infarction, congestive heart failure, cardiac arrhythmia, a heart valve condition, infectious heart conditions or pericardial adhesions.  The Veteran underwent an angioplasty in February 2014 for his coronary heart disease.   On examination, he had a heart rate of 70 with a regular rhythm.  The point of maximal impact was the 5th intercostal space.  Heart sounds were normal and there was no jugular-venous distension.  Blood pressure was 150/72.  Auscultation of the lungs was clear and his peripheral pulses were normal.  He had no peripheral edema.   There was no evidence of cardiac hypertrophy or cardiac dilation.  The METs test revealed symptoms of dyspnea, fatigue and dizziness.  A METs level of 1-3 was assessed as the level had been found to be consistent with activities such as eating, dressing, taking a shower and slow walking for 1 to 2 blocks.  The examiner noted that the METs level limitation provided was not due solely to the Veteran's heart condition as the limitation in METs level was due to multiple medical conditions including the heart condition.  The examiner noted that it was not possible to accurately estimate the percent of METs limitation attributable to each medical condition as the Veteran's estimated METs level was confounded by his other comorbid medical conditions including chronic low back pain, PTSD, chronic obstructive pulmonary disease, tobacco abuse, osteoarthritis and deconditioning.  As a result, the Veteran's cardiac status was better indicated by his ejection fraction which was normal.  The examiner also noted that the Veteran's heart disability did not impact his ability to work as it was more likely than not that the Veteran was able to obtain and retain substantially gainful employment based on his coronary artery disease.

The Board finds that a higher initial rating in excess of 10 percent is not warranted for the Veteran's service-connected coronary artery disease.  As noted above, a 30 percent rating under Diagnostic Code 7005 requires a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  

The Veteran's service-connected disability has required continuous medication for control of the Veteran's heart disease.  The August 2015 METs test also revealed symptoms of dyspnea, fatigue and dizziness.

Notably, on VA examination in August 2015, the Veteran was assessed a METs level of 1-3 as the level had been found to be consistent with activities such as eating, dressing, taking a shower and slow walking for 1 to 2 blocks.  While this METs level demonstrated significant restrictions and would warrant a higher initial evaluation, the Board notes that the VA examiner specifically indicated that the METs level limitation provided was not due solely to the Veteran's heart condition as the limitation in METs level was due to multiple medical conditions including the heart condition.  Additionally, the examiner noted that it was not possible to accurately estimate the percent of METs limitation attributable to each medical condition as the Veteran's estimated METs level was confounded by his other comorbid medical conditions including chronic low back pain, PTSD, chronic obstructive pulmonary disease, tobacco abuse, osteoarthritis and deconditioning.  As a result, the examiner indicated that the Veteran's cardiac status was better indicated by his ejection fraction which was normal.  

In this case, it is clear that METs testing is medically contraindicated due to comorbid disorders.  The Board further finds that, consistent with the VA examiner's opinion, the METs estimates are not reflective of the level of cardiovascular disability given the limitations caused by the other noted disabilities.  As the METs estimates are clearly not reflective of the level of cardiovascular disability, the Board cannot use them when determining the level of disability.  It is noted that this is not the case where the Board cannot separate the effects of service and nonservice-connected disabilities.  Instead, here it is clear that METs estimates are not reflective of cardiovascular status.  Simply put, the Veteran's other disabilities cause an inability to perform exercise stress testing or determine cardiovascular status based on self-reports related to activity and exertion.

As noted above, the VA examiner indicated that the Veteran's cardiac status was better indicated by his ejection fraction which was normal.  Additionally, on examination, there was no evidence of cardiac hypertrophy or cardiac dilation.  As noted above, a 30 percent evaluation under Diagnostic Code 7005 requires evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  

The Board has considered that an echocardiogram dated February 25, 2014, reflects an ejection fracture of 45 to 50 percent.  However, treatment records reflect that the Veteran subsequently underwent stent placement the following day, with regular follow-up treatment since that time, as discussed in the history set forth in the report of the VA examination discussed above.  While not specifically enunciated, it is clear from the overall history set forth in the examination report and treatment records, and the VA examiner's characterizion of his overall condition that the normal ejection fraction noted at that time is more representative of his overall level of disability throughout the period under consideration in this appeal.

There Board acknowledges that there is evidence of dyspnea, fatigue and dizziness and continuous medication is required which fits squarely with the criteria for a 10 percent disability evaluation under Diagnostic Code 7005.  There is no evidence of hypertrophy or cardiac dilation and the examiner also noted that the Veteran's heart disability did not impact his ability to work as it was more likely than not that the Veteran was able to obtain and retain substantially gainful employment based on his coronary artery disease.

As the Veteran had a normal ejection fracture on examination, the record contains no evidence of hypertrophy or cardiac dilation, and as the Veteran's estimated METs level are not indicative of the level of severity of his heart disability due to his comorbid conditions, the Board finds that the manifestations of the Veteran's coronary artery disease do not more nearly approximate the criteria for an initial disability rating in excess of 10 percent.

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for a higher initial rating in excess of 10 percent for coronary artery disease.

C.  Extraschedular Evaluation

The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected PTSD and coronary artery disease disabilities.  See Bagwell v. Brown, 9 Vet. App. 157 (1966).  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.21(b) (1) (2015). 

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. 

The Veteran has indicated that his service-connected disabilities have prevented his employment.  Notably, the Veteran most recently worked as a truck driver for a supermarket but indicated that he had to retire after a workplace accident where he injured his shoulder.  While the Veteran is currently retired and experienced some occupational impairment from his service-connected disabilities, for both his PTSD and coronary artery disease disabilities, the VA examiners indicated that the Veteran's impairments either did not impact his occupation or would not render the Veteran totally incapable of obtaining or securing physical or sedentary employment.  The assigned disability ratings contemplate that the Veteran will have impairment in his earning capacity due to his service-connected disabilities.  There is no evidence of record of an exceptional or unusual clinical picture not already contemplated by the rating criteria under 38 C.F.R. § 4.124a, Diagnostic Codes 9411 and 7005.  Accordingly, as the evidence does not demonstrate that the Veteran's PTSD and coronary artery disease disabilities are productive of an exceptional disability picture that is not contemplated by the schedular rating criteria, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted.


ORDER

The denial of service connection for asthma by rating decision dated February 6, 1970 was not clear and unmistakable error (CUE).

The denial of service connection for a low back disability by rating decision dated June 1, 2004 was not clear and unmistakable error (CUE).

Entitlement to an effective date earlier than October 25, 2010 for the grant of service connection for PTSD is denied.

Entitlement to an effective date of February 26, 2014 for the grant of service connection for coronary artery disease is granted.

Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied.

Entitlement to an initial rating in excess of 10 percent for coronary artery disease is denied.


REMAND

Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim for entitlement to a TDIU.

The Veteran is currently service-connected for PTSD at a 50 percent disability rating; for diabetes mellitus type II at a 20 percent disability rating; for peripheral neuropathy of the right lower extremity at a 20 percent disability rating; for peripheral neuropathy of the left lower extremity at a 20 percent disability rating; for neuropathy of the left hand and thumb at a 10 percent rating; for neuropathy of the right hand and thumb at a 10 percent rating; for tinnitus at a 10 percent rating; for bilateral hearing loss at a 10 percent rating; and for coronary heart disease at a 10 percent rating.  

The Veteran has a combined 90 percent evaluation.  In addition, the Veteran has had at least one disability rated at 40 percent.  Therefore, the Veteran's service-connected disabilities meet the rating percentage threshold for a TDIU.  38 C.F.R. § 4.16(a). 

Having met the objective criteria for a TDIU, the remaining question before the Board is whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment.  38 C.F.R. § 3.321, 3.340, 3.341, 4.16.  The central inquiry here is whether the Veteran's service-connected disabilities alone, or in concert with each other, rendered him unable to obtain or retain substantially gainful employment.  

As noted above, in February 2014, the Board remanded the issue of entitlement to a TDIU for additional development.  As part of the February 2014 remand, the Board instructed the RO to obtain a medical opinion to determine whether the Veteran is unemployable due solely to his service-connected disabilities.

On VA examination in July 2015, a VA audiologist indicated that the Veteran's tinnitus and bilateral hearing loss disabilities did not impact his ability to work.

Per the February 2014 remand instructions, the Veteran underwent a VA examination for his PTSD disability in September 2015.  The VA examiner opined that, with solely regards to his PTSD, the Veteran's ability to perform day to day activities, especially in a work setting, was mild-moderately impacted.  

On VA examinations in August 2015, VA examiners indicated that the Veteran's diabetes mellitus, peripheral neuropathy and coronary heart disease disabilities did not impact his ability to work.

However, while these examinations determined that the disabilities did not impact his ability work, no opinion was provided to determine whether the Veteran was unemployable due solely to his service-connected disabilities.  

Accordingly, the record still does not contain an opinion discussing the cumulative effect of his service-connected disabilities on the Veteran's ability to obtain or maintain substantially gainful employment.  

As a result, the September 2015 VA examination reports do not comply with the Board's February 2014 instructions.  The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Thus, the issue of entitlement to a TDIU is once again being remanded to ensure compliance with the February 2014 remand directives in order to obtain a VA examination by a medical provider with appropriate expertise to determine the impact of any single service-connected disability, or whether his service-connected disabilities in combination with one another result in a degree of functional impairment so as to result in unemployability.  See Friscia v. Brown, 7 Vet. App. 294 (1995).  Such opinion must be based upon consideration of the Veteran's current medical condition as well as his documented history and assertions, to include employment history and education, and medical evidence associated with the record.  38 U.S.C.A. § 5103A.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  

Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2.  The RO should arrange for an appropriate health care specialist to review the claims folder and determine the degree of functional impairment resulting from each single service-connected disability or as the result of the cumulative effect of his service-connected disabilities (PTSD, coronary heart disease, diabetes mellitus, peripheral neuropathy, tinnitus, bilateral hearing loss).  In making this determination, the examiner must consider the Veteran's level of education, experience, and occupational background in determining the types of impairment that could impact his ability to obtain or maintain substantially gainful employment in light of the severity of his service-connected disabilities (standing alone in concert with each other).   

3.  After the requested records reviews and opinions are completed, the reports should be reviewed to ensure complete compliance with the directives of this remand.  If the report is deficient in any manner, it should be returned to the reviewing personnel.  See Stegall v. West, 11 Vet. App. 268 (1998).

4.  Then, perform any additional development necessary, and then readjudicate the Veteran's claim.  If his claim remains denied, he should be provided with a supplemental statement of the case (SSOC).  After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review.


The Veteran 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 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).



______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs