Citation Nr: 1803582 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 15-31 103A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an effective date prior to March 7, 2011 for the award of a permanent and total disability rating. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran had active service from February 1971 to May 1973. The matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's claim to reopen the issue of entitlement to a permanent and total disability rating, following the most recent prior final denial in a September 2009 rating decision, was received by VA on March 7, 2011. CONCLUSION OF LAW The criteria for an effective date prior to March 7, 2011 for the award of a permanent and total disability rating have not been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.160, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has raised 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 a duty to assist argument). The Veteran claims that an earlier effective date from 2004 is warranted because he had symptoms of heart failure as early as 2004, even though he was not diagnosed until 2008. He contends that VA was aware that he had congestive heart failure and should have made him aware in 2004 that he needed to file a claim. Generally, the effective date of an award of compensation for an increased evaluation is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). With respect to the effective date of award of permanent and total disability rating, the Board notes that claim for permanent and total disability rating is by definition a type of increased compensation. Thus, claim for an earlier effective date for a permanent and total disability rating is treated analogously to claims for earlier effective dates for increased ratings. A total disability may be assigned where a veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). The Veteran filed a claim of entitlement to service connection for a heart disability, which was received by VA on October 21, 2008. VA treatment records showed that the Veteran was diagnosed with congestive heart failure on August 28, 2008. During a February 2009 VA examination, the Veteran reported that he had been diagnosed with congestive heart failure in 2008 and had been prescribed medications to improve his heart function. The VA examiner noted that the Veteran had chronic congestive heart failure and that this had improved on his medications. It was noted the Veteran got a good response without any side effects. His symptoms consisted of shortness of breath and fatigue. His METs were estimated at 9 based on his echocardiogram (EKG). The examiner noted it was uncommon after longstanding hypertension to development congestive heart failure, which manifests itself by decreased heart function and left ventricular hypertrophy. It was further noted the condition was treated with medications to reduce the size of the heart, reduce the fluid in the body, and to improve heart function. The Veteran was on these medications, Lasix and Coreg, which are specific for heart failure, and the Veteran's condition has improved with these medications. By a September 2009 rating decision, the RO granted service connection for congestive heart failure with an initial rating of 100 percent effective October 21, 2008. That rating decision noted that the assigned 100 percent rating was not considered permanent since there was a likelihood of improvement and was subject to a future review examination. It was also noted the issue of entitlement to Chapter 35 benefits was not addressed as the Veteran's congestive heart failure was not considered permanently chronic. The Veteran was notified of that decision by letter dated September 14, 2009, and that decision became final one year following denial notification as the Veteran did not appeal the September 2009 rating decision. See 38 U.S.C. §§ 7104(b), 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103, 20.1100 (2017). In a claim received by VA on March 7, 2011, the Veteran requested entitlement to a total and permanent rating. A VA heart examination was conducted on August 8, 2011. The examiner noted that the Veteran's most recent echocardiogram was on March 11, 2010, and that he had a left ventricular ejection fraction of 50 to 55 percent. The examiner estimated the Veteran's metabolic equivalents (METs) at 3.5. The examiner noted that an EKG in 2011 was unremarkable. The VA examiner continued the current diagnosis of congestive heart failure. Based on the evidence showing continued chronic congestive heart failure, however, an April 2012 rating decision continued the 100-percent rating that had been assigned for congestive heart failure and established that this disability was permanent and total in nature as the evidence did not show any improvement in this condition nor was there evidence to indicate that future improvement was expected. As noted above, the Veteran did not file a claim for a permanent and total rating prior to March 7, 2011. Moreover, the evidence does not show the permanent nature of the Veteran's total disability was factually ascertainable within the one year prior to the date on which his most recent claim for increase was received, March 7, 2011. Although the Veteran met the schedular criteria for a 100 percent for his congestive heart failure prior to March 7, 2011, there was no indication that such impairment was reasonably certain to continue throughout the life or that the probability of permanent improvement under treatment was remote. VA treatment records during the one year period prior to March 7, 2011 only show that the Veteran was seen in the emergency department for chest pain on March 11, 2010; pain was relieved with Nitroglycerin; EKG did not show ischemia, cardiac enzymes were negative on three testings, and Echo shown normal ejection fraction. The Veteran was chest pain free and stable on discharge. As such, the earliest possible effective date for the award of a permanent and total disability rating is the date of claim, which is March 7, 2011. The Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and entitlement to an effective date prior to March 7, 2011 for the award of a permanent and total disability rating must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an effective date prior to March 7, 2011 for the award of a permanent and total disability rating is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs