Citation Nr: 18143844 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 13-15 718 DATE: October 23, 2018 ORDER Prior to December 28, 2011, entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease (IHD) is denied. From December 28, 2011, entitlement to a disability rating in excess of 60 percent for IHD is denied. Effective June 19, 2007, and no earlier, entitlement to service connection for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing monetary benefits. Entitlement to an effective date earlier than November 16, 2009, for the grant of service connection for IHD, is denied. FINDINGS OF FACT 1. Prior to December 28, 2011, the Veteran’s IHD has been characterized by a workload of greater than 5 METs but not greater than 7 METs, that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. 2. From December 28, 2011, the Veteran’s IHD has been characterized by a workload of greater than 3 METs but not greater than 5 METs, that results in dyspnea, fatigue, angina, dizziness, or syncope. At no point during the appeal was the Veteran’s IHD characterized by chronic congestive heart failure, or; workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. On October 1992, the Veteran was informed that his claim for service connection for PTSD was denied. This decision was not appealed nor was new and material evidence received within the appeal period. 4. The Veteran filed a claim for MDD on June 2007. Thereafter, he was granted service connection for PTSD. 5. On November 16, 2009, the Veteran submitted a claim of entitlement for service connection for IHD. 6. In a December 2010 rating decision, the RO granted service connection for IHD, effective November 16, 2009, the date of the Veteran’s original claim. In a subsequent April 2013 rating decision, the RO increased the rating of the Veteran’s service-connected IHD to 30 percent, effective November 16, 2009, the date of claim. 7. The Veteran made no submission to VA prior to November 16, 2009, which may be construed as a formal or informal claim for service connection for IHD. No such submission demonstrated an intent to apply for benefits for IHD prior to November 16, 2009. CONCLUSIONS OF LAW 1. Prior to December 28, 2011, the criteria for an initial disability rating in excess of 30 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.104, Diagnostic Code (DC) 7005. 2. From December 28, 2011, the criteria for a disability rating in excess of 60 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.104, DC 7005. 3. The criteria for an effective date of June 19, 2007, and no earlier, for the grant of service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 4. The criteria for an effective date earlier than November 16, 2009, for the grant of service connection for IHD, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to March 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2007, December 2010, and January 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In an April 2013 rating decision, the RO increased the rating for the Veteran’s service-connected IHD from 10 percent to 30 percent, effective November 16, 2009, the original date of claim. Additionally, in that same rating decision, the RO granted a 60 percent rating for IHD, effective December 28, 2011. As this does not constitute a full grant, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). In a September 2018 Informal Hearing Presentation, the Veteran’s representative listed the issue of entitlement to service connection for hypertension as being on appeal. This claim, among others, was denied in an April 2016 rating decision. Subsequently, that same month, the RO received a Notice of Disagreement (NOD) for the issues of service connection for hypertension, bilateral peripheral neuropathy of the upper and lower extremities, special monthly compensation for aid and attendance, special home adaptation, and special adapted housing. These claims have separate appeal streams that remain in advance status and are not yet active before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With initial evaluations, as here, separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Entitlement to an initial disability rating in excess of 30 percent for IHD, prior to December 28, 2011, and in excess of 60 percent thereafter. As there is considerable overlap in the applicable evidence for the Veteran’s claims for entitlement to increased ratings for IHD, the Board will discuss the two claims together. DC 7005 rates arteriosclerotic heart disease, otherwise known as coronary artery disease (CAD). Id. A 30 percent disability rating is warranted for a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. Id. A 60 percent disability rating is warranted for 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 that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. The maximum 100 percent disability rating is warranted for chronic congestive heart failure, or; workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. A note for this DC states that if nonservice-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, a request for a medical opinion as to which condition is causing the current signs and symptoms is necessary. Prior to December 28, 2011 The assigned 30 disability rating for the Veteran’s IHD, fully contemplates all heart symptoms. The evidence of record, including August 2010, December 2011, and April 2016 VA examination reports, consistently indicates a workload of greater than five METs but not greater than seven METs that results in dyspnea, fatigue, angina, dizziness, or syncope, as well as left ventricular ejection fraction of 65 percent. At no point during the period on appeal was the Veteran’s IHD characterized by more than one episode of acute congestive heart failure in the past year, a workload of greater than three METs but not greater than five METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. There accordingly exists no basis for a disability rating in excess of 30 percent for the Veteran’s IHD prior to December 28, 2011. 38 C.F.R. § 4.104, DCs 7005. From December 28, 2011 The assigned 60 disability rating for the Veteran’s IHD, fully contemplates all heart symptoms. The evidence of record, including August 2010, December 2011, and April 2016 VA examination reports, consistently indicates a workload of greater than three METs but not greater than five METs that results in dyspnea, fatigue, angina, dizziness, or syncope, as well as left ventricular ejection fraction of 65 percent. At no point during the period on appeal was the Veteran’s IHD characterized by chronic congestive heart failure, or a workload of three METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. There accordingly exists no basis for a disability rating in excess of 60 percent for the Veteran’s IHD from December 28, 2011. 38 C.F.R. § 4.104, DCs 7005. The Board finds that the August 2010, December 2011, and April 2016 VA examination reports, describing the Veteran’s heart symptoms symptoms, to be the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent to observe his heart symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his IHD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on this record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial disability rating in excess of 30 percent for IHD, prior to December 28, 2011, and in excess of 60 percent thereafter. 38 C.F.R. §§ 3.102, 4.71a, DC 7005. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In the present case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. Earlier Effective Date Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a NOD is filed within one year of the notice of decision or unless new and material evidence was received within the appeal period. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Entitlement to an effective date prior to April 9, 2008, for entitlement to service connection for PTSD. In this case, the Veteran seeks entitlement to an effective date earlier than April 9, 2008 for the grant of service connection for PTSD. Originally, the Veteran first filed a claim for a nervous condition in May 1971. An August 1972 rating decision denied this claim and the Veteran submitted a Notice of Disagreement (NOD), which was received in April 1973. Subsequently, the RO readjudicated the claim in a May 1973 Statement of the Case, continuing the denial for service connection for a nervous disorder. The Veteran never filed a Substantive Appeal with the May 1973 Statement of the Case, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. In March 1992, the Veteran filed a new claim for service connection for PTSD. In an October 1992 letter, he was notified that his claim for PTSD was denied. Enclosed with this letter was VA Form 1-4107, explaining to the Veteran what his procedural and appellate rights were. According to 38 C.F.R. § 20.1103, a determination, not a rating decision, on a claim by the agency of original jurisdiction of which the claimant is properly notified, is final if an appeal is not perfected as prescribed in 38 C.F.R. § 20.302. 38 C.F.R. § 20.1103. In this case, the Veteran did not submit a NOD with the October 1992 denial, nor was new and material evidence submitted within the appellate period. As a result, the October 1992 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. In June 2007, the Veteran filed a new claim for MDD, which was denied in an August 2007 rating decision. The Veteran never submitted a NOD to this decision. In April 2008, he filed a new claim for PTSD. However, in July 2008, within one year of the previous August 2007 rating decision, VA treatment records were added to the Veteran’s claims folder. These records contained mental health treatment from July 2007 to June 2008. Because new evidence was received by the RO within one year of the August 2007 denial, it did not become final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. In determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the United States Court of Appeals for Veterans Claims (Court) decision in Clemons and the fact that the Veteran is not competent to diagnose himself with a psychological disability, the Board construes his claim for MDD to encompass all acquired psychiatric disorders, including PTSD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). This will provide the most favorable review of the Veteran’s claims in keeping with the Court’s holding in Clemons. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As a result, when the RO granted the Veteran’s claim for service connection for PTSD in a January 2012 rating decision, the correct effective date should be June 19, 2007, the original date of his claim for MDD, not April 9, 2008, the date of his claim for PTSD. Based on the above analysis and affording the Veteran the benefit of the doubt, an effective date of June 19, 2007, but no earlier, for the Veteran’s service-connected PTSD is granted. Entitlement to an effective date prior to November 16, 2009, for entitlement to service connection for IHD. In this case, the Veteran seeks entitlement to an effective date earlier than November 16, 2009 for the grant of service connection for IHD. While an August 2010 VA examination report noted that the Veteran experienced heart problems and was diagnosed with an acute myocardial infarction in June 2008, he did not file a claim for service-connection until November 16, 2009. The Board notes that it is the Veteran’s responsibility to file his own claim. According to 38 C.F.R. § 3.400, 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” (emphasis added). Because the Veteran was diagnosed with heart problems in June 2008, but did not file his claim for service connection until November 2009, the effective date is the later date of November 16, 2009 the date the Veteran filed his service connection claim. Id. There is a presumption of regularity that public officers perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005); Crain v. Principi, 17 Vet. App. 182 (2003). The presumption of regularity applies to procedures at the VA regional offices. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Given the presumption of regularity that applies to VA operations, had the Veteran contacted the VA, or filed a claim for service connection for IHD prior to November 16, 2009, a record of that communication or claim would have been associated with the claims file in the ordinary course of business. The statements by the Veteran, standing alone, are insufficient to rebut the presumption of regularity. Id. at 274 (holding that “clear evidence to the contrary” is required to rebut the presumption of regularity). Under the presumption of regularity, the absence of documentation may be taken as proof that that the Veteran did not file a claim for service connection for IHD prior to November 16, 2009. The Veteran has never claimed that he attempted to file a claim for service connection for IHD prior to November 16, 2009; rather, he believes that because he was diagnosed with the condition earlier, that is when the effective date should be. In the absence of formal or informal claims for entitlement to service connection for IHD prior to November 16, 2009, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an earlier effective date for service connection for IHD. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel