Citation Nr: 1802213	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  13-30 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1. Entitlement to service connection for fibromyalgia, secondary to a service-connected stroke (CVA).

2. Entitlement to an increased rating in excess of 50 percent for a generalized anxiety disorder. 

3. Entitlement to an initial compensable evaluation for residuals of a CVA, embolic in nature, from March 1, 1984.

4. Entitlement to an increased rating in excess of 30 percent disabling for aortic insufficiency, status post aortic valve replacement, from October 1, 1983.

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

6. Entitlement to an effective date prior to November 3, 2008 for special monthly compensation (SMC) based on loss of use of a creative organ. 

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1978 to January 1982. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Albuquerque, New Mexico Department of Veterans Affairs (VA) Regional Office (RO) in July 1983 (assigning a 30 percent disabling evaluation to residuals of an aortic valve replacement), December 1983 (granting service connection for residuals of a CVA at 100 percent disabling prior to March 1, 1984 and 30 percent disabling thereafter), September 2009 (denying an increased rating in excess of 30 percent disabling for a generalized anxiety disorder and granting entitlement to SMC based on loss of use of a creative organ from November 3, 2008), and in May 2012 (denying service connection for fibromyalgia). An interim October 2013 rating decision increased the Veteran's rating for a generalized anxiety disorder to 50 percent disabling, effective November 3, 2008. In January 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. 

The Board notes that the Veteran properly appealed a July 1983 rating decision involving residuals of an aortic valve replacement (later recharacterized as aortic insufficiency, status post aortic valve replacement) in a September 1983 notice of disagreement (NOD) and eventual October 1983 substantive appeal. The record does not reflect that the Veteran ever withdrew his appeal, but the claim never came before the Board until now. Although the Veteran requested a Board hearing in his substantive appeal, October 1983 correspondence with the Veteran's representative appears to withdraw such request. Accordingly, the Board finds the Veteran's request for a hearing withdrawn. 

The Veteran was assigned a 100 percent rating for his aortic insufficiency, status post aortic valve replacement from May 26, 1982 to October 1, 1983; the Veteran cannot obtain a rating in excess of 100 percent disabling. Accordingly, the claim has been characterized to reflect that the period of appeal is from October 1, 1983 on the title page. [The period prior to May 26, 1982 is not on appeal. See 38 C.F.R. § 3.400(o).]

Although the Veteran submitted a timely NOD to the rating assigned when service connection for residuals of a CVA was granted in a December 1983 rating decision, a statement of the case was not issued until after the Veteran filed a second NOD after a September 2009 rating decision; therefore, the appeal never became final, and the current appeal stems from the December 1983 rating decision. See Tablazon v. Brown, 8 Vet. App. 359, 361 (1995). Additionally, the Veteran was assigned a 100 percent rating prior to March 1, 1984; because the Veteran may not receive a rating in excess of 100 percent disabling, the claim has been characterized to reflect that the period of appeal is from March 1, 1984 on the title page.

The Veteran claims that his service-connected disabilities, including residuals of a CVA and generalized anxiety disorder, interfere with his ability to secure and follow substantially gainful employment. See February 2017 Application for Increased Compensation Based on Unemployability. Because TDIU claims are inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), TDIU has been added as an issue to the title page.

An issue of entitlement to an earlier effective date for the grant of SMC based on loss of a creative organ on the basis of clear and unmistakable error (CUE), appears to have been raised in the record several times (e.g., correspondence dated October 2010, January 2011, and March 2015), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2010).

The issues of service connection for increased ratings for residuals of a CVA and aortic insufficiency, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran is action on his part is required.


FINDINGS OF FACT

1. The evidence is in equipoise that the Veteran's fibromyalgia is caused by his aortic insufficiency, status post aortic valve replacement. 

2. The Veteran withdrew his appeal for an increased rating for a generalized anxiety disorder during his January 2017 Board hearing.

3. The Veteran's claim for service connection for hypogonadism and adult hormone deficiency was received on November 3, 2008.

4. The record, including medical records and statements by the Veteran, did not indicate hypogonadism, adult hormone deficiency, or any other reproductive system related illness, such as erectile dysfunction, prior to the Veteran's claim of service connection for hypogonadism and adult hormone deficiency received on November 3, 2008.




CONCLUSIONS OF LAW

1. Service connection for fibromyalgia is warranted. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 

2. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider the Veteran's claim of an increased rating for a generalized anxiety disorder. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

3. An effective date prior to November 3, 2008, for the grant of SMC based on loss of use of a creative organ is not warranted. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.105(a), 3.151, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to notify and assist

Inasmuch as the benefits sought are being granted or withdrawn, there is no reason to belabor the impact of notice and assistance requirements on the matters of an increased rating for a generalized anxiety disorder and entitlement to service connection for fibromyalgia. Any notice or duty to assist omission is harmless.

The Board notes that determinations regarding effective dates of awards of service connection are based essentially on what is already in the record, and when it was received, and that further development of the record is generally not necessary. The Board finds that the record includes adequate competent evidence to decide the matter of an earlier effective date, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent, existing evidence that remains outstanding. 

Neither the Veteran nor his representative has raised other any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Service connection

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Although several VA examiners opined that it was less likely than not that the Veteran's fibromyalgia was caused by his service-connected CVA (see October 2011, May 2012, November 2012 VA examinations), only the October 2011 VA examiner opined that the Veteran's condition was less likely than not due to his aortic insufficiency, status post aortic valve replacement. The Veteran submitted an August 2016 opinion from Dr. C. Bash, MD, wherein he opined that the Veteran's hypothalamus induced fibromyalgia by way of loss of growth hormone (ACTH), was at least 90 percent likely caused by his aortic valve insufficiency and replacement. Accordingly, the evidence is in equipoise that the Veteran's fibromyalgia was caused by his service-connected aortic insufficiency, status post aortic valve replacement, and service connection is warranted.

[In response to correspondence from the Veteran dated January 2017, the Board does not have jurisdiction over a claim for an earlier effective date for fibromyalgia, because it has not been properly appealed (due to the fact that an effective date has never been assigned by the RO, because the claim of service connection has just been granted by the Board). After the RO assigns an effective date for his fibromyalgia, the Veteran is free to appeal for an earlier effective date, if he so wishes.]

III. Withdrawal

The Board has jurisdiction where there is a question of law or fact in a matter on appeal to the Secretary. 38 U.S.C. § 7104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. The withdrawal of an appeal must be either in writing or on the record at a hearing. 38 C.F.R. § 20.204. Withdrawal can be by the Veteran or by his representative. Id. 

On the record during his January 2017 hearing, the Veteran withdrew his appeal seeking an increased rating for a generalized anxiety disorder. Accordingly, the Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, as the Board has no further jurisdiction to review appeals on this matter, it is dismissed.






III. Earlier effective date

Legal Criteria

Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2).

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a Veteran to have intent to file a claim for VA benefits). 

An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Demonstrating that entitlement existed prior to the date the claim was received does not, as a matter of law, establish entitlement to an earlier effective date. 38 C.F.R. § 3.400(b)(2).

Entitlement to SMC will be inferred when then record indicates that it may be available, even if the Veteran does not place eligibility for this ancillary benefit at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that SMC "benefits are to be accorded when a [V]eteran becomes eligible without need for a separate claim."); cf. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum benefits allowed by law).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Factual background 

The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. The Board will summarize the relevant evidence, as deemed appropriate, and the analysis will focus on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

VA mental health treatment received by VA prior to November 3, 2008 reflect that the Veteran reported ambivalence towards women and sexuality, and such symptoms were consistently attributed as due to mental health symptoms. See, e.g., August 1984 VA treatment records. There are no mentions of erectile dysfunction or other symptoms related to the Veteran's reproductive system in any medical records, VA examinations, or statements from the Veteran until after the Veteran's claim for service connection for hypogonadism and adult hormone deficiency was received on November 3, 2008. 

The Veteran filed a claim of service connection for hypogonadism and adult hormone deficiency on November 3, 2008. In a September 2009 rating decision, the RO granted SMC based on loss of use of a creative organ, effective November 3, 2008.

In numerous correspondences, the Veteran argues that his effective date should be moved to either 1983 or 1984 because additional medical testing at that time would have established evidence demonstrating loss of a creative organ. See, e.g., January 2011 correspondence. The Veteran has also submitted numerous medical articles in support of such claim.

Analysis

The September 2009 rating decision granted an effective date of November 3, 2008 for SMC based on loss of a creative organ. The claim on appeal was received on November 3, 2008. Thus, absent a finding of CUE (a separate matter which has not yet been developed or adjudicated by the AOJ), entitlement to SMC based on loss of use of a creative organ arose no sooner than November 3, 2008. Consequently, there is no legal basis for an effective date prior to November 3, 2008, and the Veteran's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Veteran's argument (and medical evidence in support thereof, such as the medical articles submitted) that further testing in 1983 or 1984 would have led to such evidence is irrelevant to the legal determination of whether he is entitled to an earlier effective date. An effective date of an award of service connection is not based on the earliest medical evidence present (or other evidence that could of lead to such evidence), but rather on the date that the application upon which service connection was eventually awarded was filed. In this case, service connection for hypogonadism and adult hormone deficiency was received on November 3, 2008, and the Veteran's SMC was granted pursuant to that claim.

The Board notes that the record at the time of the December 1983 rating decision and thereafter until November 3, 2008 did not indicate hypogonadism, adult hormone deficiency, or any other reproductive system related illness, such as erectile dysfunction; thus there is no way that SMC based on loss of use of a creative organ could have been inferred by the RO any time prior to November 3, 2008. The Veteran's mental health complaints associated with women and sexuality do not indicate a physical disability, but rather effects of the Veteran's documented generalized anxiety disorder. Accordingly, there was no claim (inferred or otherwise) for SMC based on loss of use of a creative organ prior to November 3, 2008, and the analysis as discussed above remains the same.

As a final matter, to the extent that the Veteran argues that 38 C.F.R. § 3.114(a) is applicable to his claim, see July 2010 correspondence, the Board notes that the regulation is inapplicable because the grant of SMC was not pursuant to a liberalizing law or a liberalizing VA issue approved by the Secretary of VA or by the Secretary's direction. Rather, SMC was granted because the issue was inferred at the time the Veteran applied for service connection for hypogonadism and adult hormone deficiency, which was on November 3, 2008.


ORDER

Service connection for fibromyalgia, secondary to aortic insufficiency, status post aortic valve replacement, is granted.

The appeal seeking an increased rating for a generalized anxiety disorder is dismissed.

The appeal seeking an effective date prior to November 3, 2008 for SMC based on loss of use of a creative organ is denied.


REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims.

Residuals of a CVA

The Veteran underwent VA examinations for residuals of his CVA in August 2009 and February 2014. He has also undergone various VA examinations for other symptoms he attributes to his CVA. However, there are some symptoms the Veteran attributes to his CVA, such as migraines and vertigo, for which there is no medical opinion as to whether such symptoms are related to his stroke. Accordingly, new VA examinations are necessary. 

Aortic Insufficiency

In December 2017, the Veteran's representative argued that the Veteran's May 1983 VA examination was inadequate because the examiner did not have access to the claims file. The Veteran has been rated pursuant to Diagnostic Code (Code) 7016, for a heart valve replacement (prosthesis); the rating criteria for Code 7016 changed during the pendency of the appeal, effective January 12, 1998. Prior to January 12, 1998, Code 7016 provided that a 100 percent rating was warranted for one year following implantation of prosthetic valve; thereafter, the disability would be rated as rheumatic heart disease (Code 7000), with a minimum rating of 30 percent disabling. 38 C.F.R. § 4.104, Code 7016 (1988). The Board finds that remand is necessary to obtain a retroactive medical opinion to determine whether the Veteran has experienced any of the old Code 7000 and 7016 criteria at any time during the appeal period.

The matter of entitlement to TDIU is inextricably intertwined with the Veteran's other claims; accordingly, adjudication must be deferred.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from March 2017 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record.

2. After the above development is completed, the AOJ should arrange for an examination (or examinations, as necessary) to determine the nature and severity of the residuals of the Veteran's service-connected CVA. After review of the record (including this Board remand), the examiner should respond to the following:

(a) Please consider all symptoms that the Veteran has reported as due to his CVA, to include migraines and vertigo, and opine as to whether such symptoms are AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) due to his CVA. Please explain why.

[The Veteran should ensure he discusses all symptoms he believes are attributable to his CVA with the VA examiner.]

(b) For any symptom that is attributed to the Veteran's service-connected CVA, please identify the severity of such symptom. If a separate VA examination specific to that symptom is necessary to make such, such should be completed. 

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

3. After the development in the first instruction is completed, the AOJ should forward the Veteran's claims file to an adequate medical provider to determine the nature and severity of the Veteran's aortic insufficiency during the pendency of the appeal. After review of the record (including this remand), the examiner should respond to the following:

(a) Has the Veteran had a definitely enlarged heart; severe dyspnea on exertion; elevation of systolic blood pressure, or such arrhythmias as paroxysmal auricular fibrillation or flutter or paroxysmal tachycardia; and more than light manual labor is precluded at any time since October 1, 1983?

(b) Has the Veteran had definite enlargement of the heart confirmed by roentgenogram and clinically; dyspnea on slight exertion; pretibial pitting at end of day or other definite signs of beginning congestive failure; and more than sedentary employment is precluded since October 1, 1983?

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

4. The AOJ should then review the record and re-adjudicate the claims. If they remain denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
VICTORIA MOSHIASHWILI 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs