Citation Nr: 1752049 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 09-42 086A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a heart condition, claimed as cardiac complications secondary to service-connected anemia. 2. Entitlement to a rating in excess of 60 percent for gastric ulcers with anemia from July 3, 3008. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Adam Neidenberg, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1977 to August 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied a claim for service connection for cardiac complications, continued the 20 percent rating assigned for gastric ulcers, and assigned a noncompensable rating for anemia effective July 3, 2008. The RO in Atlanta, Georgia, currently has jurisdiction of the claims. In June 2013, the Board remanded the issues for additional development. The Board finds that, as to the Veteran's service connection claim for a heart condition, the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In a February 2016 rating decision, the RO increased the Veteran's rating for anemia to 10 percent effective December 8, 2015. In addition, a May 2016 rating decision increased the Veteran's disability rating for gastric ulcers with anemia from 20 percent to 60 percent effective July 3, 2008 and discontinued the 10 percent rating for anemia recharacterizing it as a manifestation of the Veteran's service-connected gastric ulcers. Thus, the issue on appeal has also been recharacterized. In addition, despite the increased evaluation, the Court has held that, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available disability ratings for that condition. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In fact, the Veteran's attorney filed a notice of disagreement with the May 2016 rating decision in April 2017. See also October 2016 DRO Conference Report. Thus, the issue remains in appellate status. The Veteran and his spouse presented testimony at a videoconference hearing before the undersigned in October 2012. A transcript is of record. After his hearing, the Veteran submitted additional evidence directly to the Board, which was accompanied by a waiver of RO consideration. The evidence can therefore be considered by the Board in the first instance. 38 C.F.R. § 20.1304 (2017). The Board notes that the issues of entitlement to service connection for posttraumatic stress disorder, chronic obstructive pulmonary disease, and an eye condition was certified to the Board in August 2016. See August 2016 VA Form 8. However, as the Veteran has not yet been afforded the requested hearing, the claim is not ripe for review. See February 2016 VA Form 9. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The issues of entitlement to a rating in excess of 60 percent for gastric ulcers with anemia from July 3, 3008 and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. The Veteran's heart disability did not have its onset in service and is not otherwise related to service. 2. The Veteran's heart disability is not proximately due to or aggravated by his service-connected anemia. CONCLUSION OF LAW The criteria for service connection for a heart condition, claimed as cardiac complications secondary to service-connected anemia have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that his heart disability is related to service or secondary to his service-connected anemia. See October 2012 Hearing Transcript. As the Veteran has a diagnosis of acute, subacute, or old myocardial infarction and coronary artery disease, the issue that remains disputed is whether the disability is related to service or a service-connected disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.310(a) (2017). The Veteran's service treatment records reveal complaints of chest pain in March 1977 and a cardiac murmur in December 1983. However a March 1984 chest x-ray was normal. September 2003 VA x-ray findings show normal cardiovascular silhouette and no evidence of congestive failure. In addition, a heart study showed no scintigraphic evidence of ischemia or infarction. The Veteran's private treatment records indicate that in June 2004 he was admitted to the Medical Center of Central Georgia and diagnosed with an acute inferior wall myocardial infarction and cardiomyopathy. The Veteran was afforded a VA examination in December 2015. Regarding direct service connection, the examiner opined that it is less likely as not that any current heart condition is related to service to include complaints of chest pain and a finding of cardiac murmur in service. The examiner reasoned that the Veteran's service treatment records show that in March 1977 he complained of headache and chest pain and was diagnosed and treated for an upper respiratory infection. There were no further documented complaints of chest pain in his service treatment records. In addition, in December 1983 he was noted to have a Grade II/VI systolic ejection murmur (a murmur that is low but audible) and was instructed to follow-up with internal medicine. The examiner did not find notes of a follow up visit in the service treatment records. The examiner also noted that in a February 1984 narrative summary from the Veteran's admission to the hospital for another condition, it was noted that a Grade II/VI murmur was found on physical examination but no S3 or S4 sounds were heard. In addition, the chest x-ray was normal. There were no other abnormal findings to suggest that the murmur was pathological, and systolic murmurs are commonly harmless. The Veteran's service treatment records were otherwise silent for a diagnosis or treatment for a cardiac condition. The examiner further explained that the Veteran's post service records show he had a myocardial infarction in 2004 and was diagnosed with coronary disease at that time. Medical evidence does not suggest a direct causational or etiological link between cardiac murmur and myocardial infarction nor a cardiac murmur and coronary artery disease. The Veteran's coronary artery disease and myocardial infarction occurred in 2004, which is 20 years after separation. Regarding secondary service connection, the examiner opined that it was less likely than not that the Veteran's heart condition was caused by his service-connected anemia. The examiner reasoned that coronary artery disease is caused by accumulation of plaque in the coronary arteries which are the major blood vessels that supply the heart with blood causing them to become hardened and narrowed. This results in decreased blood flow to the heart. Medical evidence does not suggest a correlation between coronary artery disease and anemia. The examiner further noted that the Veteran has risk factors for coronary artery disease to include smoking, hypertension, and hyperlipidemia. The examiner also explained that because there is no correlation between anemia and coronary artery disease it is less likely than not that the Veteran's service-connected anemia aggravated any current heart condition. The Board finds that VA examiner's opinion is adequate and highly probative to the question at hand. The examiner possessed the necessary education, training, and expertise to provide the requested opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner provided adequate rationales for the opinions, and the opinions were based on an examination and interview of the Veteran, as well as on a review of the service treatment records, the post-service treatment records and examinations, and the lay statements of the Veteran. The opinions considered an accurate history, were definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the most persuasive evidence of record shows that the current knee disability is not related to his service-connected bilateral ankle disabilities. The Board has also considered the Veteran's assertions that his current heart disability was caused or aggravated by his service-connected anemia. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran's heart disability is related to another service-connected disability requires medical expertise to determine. Thus, the Board finds the VA medical opinion more probative than the Veteran's statements. 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 the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a heart condition, claimed as cardiac complications secondary to service-connected anemia is denied. REMAND The Board remanded the Veteran's claim to the AOJ in June 2013 for additional development. The RO completed the requested development, readjudicated the claims, and issued an SSOC in May 2016. Since the May 2016 SSOC, additional evidence pertinent to the Veteran's claims for an increased rating for gastric ulcers with anemia and TDIU have been associated with the record. These records include VA treatment records, private treatment records from University Cancer & Blood Center, a June 2017 disability benefits questionnaire, August 2017 VA examination reports, vocational rehabilitation records, an independent medical opinion, and information for the Veteran's previous employers. As this evidence has not been considered and reajudicated by the RO, a remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998)). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with an SSOC, to specifically include consideration of the evidence added to the record since the May 2016 SSOC, and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (West 2014). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs