Citation Nr: 1803180 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-13 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 30 percent prior to February 15, 2013, and in excess of 50 percent from that date for service-connected mood disorder with anxious and depressive features (claimed as anxiety stress attacks). 2. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected psoriasis of the bilateral legs, arms and scalp. 3. Entitlement to service connection for bicuspid aortic valve with history of idiopathic non-ischemic cardiomyopathy and complaints of dyspnea, to include atypical chest pain and enlarged heart (cardiac disabilities). 4. Entitlement to service connection for lower back condition. 5. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1997 to August 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. While the Veteran's September 2010 Notice of Disagreement included an appeal of his claims for entitlement to service connection for bilateral hearing loss and tinnitus, the Board notes the subsequent February 2014 rating decision granted service connection for both bilateral hearing loss and tinnitus. A 10 percent disability evaluation was assigned effective August 28, 2009 for tinnitus and a noncompensable evaluation was assigned effective February 15, 2013 for bilateral hearing loss. Therefore, the bilateral hearing loss and tinnitus service connection claims are no longer before the Board. Also in the February 2014 rating decision, the RO increased the rating for the Veteran's service-connected mood disorder with anxious and depressive features from 10 percent to 30 percent, effective August 28, 2009 (day after separation from service), and to 50 percent, effective February 15, 2013 (date of VA examination). As this grant does not constitute a full grant of the benefit sought, this claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, the Board notes in an April 2014 statement that accompanied the Veteran's VA Form 9, substantive appeal, he mentioned an inability to maintain employment due to his disabilities. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Accordingly, the Board finds that the issue of entitlement to TDIU is raised by the record, and is part and parcel of the increased rating claims pending before the Board. Id. The increased initial rating claims for a mood disorder with anxious and depressive features and psoriasis of the bilateral legs, arms and scalp; as well as the service connection claim for a lower back condition; and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence supports a finding that the Veteran has idiopathic non-ischemic cardiomyopathy that is causally related to his military service. CONCLUSION OF LAW The criteria for service connection for idiopathic non-ischemic cardiomyopathy have been met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The Veteran's claim of entitlement to service connection for bicuspid aortic valve with history of idiopathic non-ischemic cardiomyopathy and complaints of dyspnea, to include atypical chest pain and enlarged heart is being granted herein. Any error related to these duties is moot. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria, Facts and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that he is entitled to service connection for his cardiac disabilities because they are as a result of his military service. The February 2013 VA examination diagnosed the Veteran with valvular heart disease and idiopathic cardiomyopathy. These diagnoses satisfy the first prong of the service connection claim, the existence of a present disability. As to the second element, the in-service incurrence, the Veteran's service treatment records show he was continuously treated for cardiac conditions in service. Specifically, the record reflects he was under the care of Cardiology Consultants for history of bicuspid aortic valve as well as evidence of a nonischemic cardiomyopathy while on active duty. In fact, he underwent a Medical Board evaluation for idiopathic cardiomyopathy in May 2007 but was found to still be fit for duty. Thereafter, an August 2009 problem list reported the Veteran had diagnoses including atypical chest pain, aortic valve disorder and cardiomyopathy. Regarding a causal connection between the Veteran's cardiac disabilities and his service, the Veteran was provided a February 2013 VA examination wherein the examiner found the Veteran's chronic symptoms of dizziness and light headedness along with atypical chest pain in the left arm to be attributable to his cardiomyopathy. While the examiner noted that the Veteran also had a bicuspid aortic valve, which he stated was congenital and not related to the Veteran's military service, he also opined that the Veteran's cardiomyopathy had an unknown cause and was likely as not exacerbated by his military service in the sense of being untreated and exercise would exacerbate the condition. This included raising his blood pressure and causing cardiac strain that leads to increased heart size to compensate. The Board finds the February 2013 VA examiner's opinion to be well-reasoned and supported by medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that "most of the probative value of a medical opinion comes from its reasoning"). Consequently, the preponderance of the evidence supports a finding that the Veteran's idiopathic non-ischemic cardiomyopathy was proximately due to or the result of his service. Accordingly, after resolving any reasonable doubt in the Veteran's favor, service connection for idiopathic non-ischemic cardiomyopathy is warranted. ORDER Service connection for idiopathic non-ischemic cardiomyopathy and complaints of dyspnea, to include atypical chest pain and enlarged heart is granted. REMAND The Veteran contends he suffered an injury to his back during service while cleaning shop rags. His service treatment records show complaints of and treatment for chronic low back pain reports. In particular, a January 2003 service treatment note showed the Veteran underwent a MRI of his lumbar spine following reports of chronic back pain but the MRI impression was a normal lumbar spine. Again in September 2003 and November 2003, the Veteran was seen reporting acute back pain. Thereafter, a February 2008 service treatment reflects he was seen for an evaluation of the lower back pain he had been experiencing for 8 years. In September 2009, the Veteran underwent a VA examination for his back. While the claims file was reviewed, it appears the Veteran's service treatment records were not available at the time of the examination. Despite reports of pain, a MRI of the lumbar spine in September 2009 had a normal impression and no diagnosis was provided. In his April 2014 statement, the Veteran reported suffering daily from his injury to his back in service. Specifically, he reported that it affected his sleep, walking, and sitting, among other functions. He also reported that he suffered high amounts of pain. Although the medical evidence of record does not include ongoing treatment notations pertaining to the Veteran's back pain, he has provided ongoing reports of pain in his back. Given the service treatment records which show notations of continuous back pain, and which were not reviewed by the September 2009 VA examiner, as well as the Veteran's continued reports of back pain, the Board finds an updated VA examination is needed to determine whether the Veteran presently has a diagnosed back condition, and if so, whether such is related to his in-service complaints. Prior to obtaining the VA examination, updated VA treatment records should also be obtained for the record. The Veteran also seeks an increased disability evaluation for his service-connected mood disorder with anxious depressive features as well as his psoriasis of the bilateral legs, arms and scalp. The last VA examinations evaluating these disabilities was performed in February 2013. Since that time, the Veteran submitted the April 2014 statement which reported his disagreement with his present disability ratings. He reported living in constant pain and mental anguish as a result of his disabilities. Viewing the evidence in the light most favorable to the Veteran, the Board finds another examination is necessary to evaluate the present severity of these service-connected disabilities prior to adjudication. Lastly, the Board finds that the inferred claim of entitlement to a TDIU is inextricably intertwined with the issues of entitlement to a disability rating for service-connected mood disorder with anxious and depressive features and service-connected psoriasis of the bilateral legs, arms and scalp with history of arthritic psoriasis because a decision on the latter claims may have an impact on the former claim. Consequently, the claim of entitlement to TDIU must be remanded for contemporaneous adjudication. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board also notes the record does not reflect the Veteran's submission of a VA Form 21-8940 which should be obtained to assist with adjudication of this issue. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice of the laws and regulations governing a TDIU and request that he complete and return a VA Form 21-8940. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities on his ability to work. Provide him with a reasonable time to submit this evidence. 3. Obtain any updated VA treatment records and private records and associate the records with the claims file. Any negative reply should be properly included in the claims file. 4. Following the completion of the above, make arrangements for the Veteran to be afforded examinations to determine the present severity of his mood disorder with anxious and depressive features as well as his psoriasis of the bilateral legs, arms and scalp. The claims file must be provided to the examiners for review. The examination reports should include a detailed account of all the objective findings and observations relating to these disabilities. The examiners must provide a comprehensive report including complete explanation for all opinions and conclusions reached, taking into account, and citing where appropriate, the evidence in the record, including the Veteran's reports of his history, his current symptomatology, and all associated functional and occupational limitations found. 5. Additionally, make arrangements for the Veteran to be afforded an examination for his lumbar spine. The claims file must be provided to the examiner for review in conjunction with the examination. The report of examination should include a detailed account of all manifestations of lumbar spine pathology found to be present. The examiner should then provide opinions responding to the following: a. Identify/diagnose any lower back disabilities that presently exist or has existed during the pendency of the appeal. b. For each disability identified/diagnosed, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disability had onset during service or is otherwise related thereto. The examiner should take into account the Veteran's specific lay contentions in providing a medical opinion. A complete and thorough rationale must be provided for all opinions. If the examiner cannot provide an opinion without resorting to speculation then he or she must provide a complete and thorough rationale as to why an opinion cannot be provided. 6. Thereafter, the AOJ should re-adjudicate the claims, to include consideration of entitlement to TDIU. If any of the benefits sought on appeal are not granted, the AOJ must provide a supplemental statement of the case to the Veteran and his representative. An appropriate period of time should be allowed for response. The claims folder should then be returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs