Citation Nr: 18144115 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 14-24 059A DATE: October 23, 2018 ORDER Entitlement to compensation benefits under 38 U.S.C. § 1151 for recurrence of non-Hodgkin’s lymphoma (NHL) is dismissed. Entitlement to compensation benefits under 38 U.S.C. § 1151 for dizziness, weakness, and imbalance due to overmedication for coronary artery disease (CAD) is denied. Entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic neck pain due to misdiagnosis is denied. A temporary total evaluation (TTE) under 38 C.F.R. § 4.30 for treatment requiring convalescence is granted from November 17, 2010, to December 31, 2010. REMANDED Entitlement to an initial rating in excess of 30 percent for CAD prior to April 2, 2013, is remanded. Entitlement to an effective date prior to April 2, 2013, for the 100 percent rating for CAD is remanded. Entitlement to an effective date prior to April 2, 2013, for the grant of special monthly compensation (SMC) is remanded. FINDINGS OF FACT 1. The Veteran was service-connected for NHL at the time of his death. 2. The weight of the competent and probative evidence is against finding the occurrence of side effects due overmedication for CAD during the period on appeal. 3. The weight of the competent and probative evidence is against finding chronic neck pain due to misdiagnosis during the period on appeal. 4. The competent and probative evidence is at least in equipoise as to whether the Veteran’s heart procedure on November 17, 2010, required six weeks of convalescence. CONCLUSIONS OF LAW 1. The claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for recurrence of NHL is dismissed as a matter of law. 2. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for dizziness, weakness, and imbalance due to overmedication for CAD have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.303, 3.361. 3. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic neck pain due to misdiagnosis have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.303, 3.361. 4. The criteria for entitlement to a temporary total evaluation from November 17, 2010, to December 31, 2010, for postsurgical convalescence related to a cardiac procedure have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to March 1973; he died in January 2016. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2009, July 2012, and May 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his Form 9 substantive appeal. The RO scheduled a hearing and sent notice to the appellant in April 2018. However, she did not appear for the hearing, and the hearing request was effectively withdrawn. Additionally, the Board notes July 2018 correspondence indicating that the appellant does not wish to reschedule the hearing. A December 2009 rating decision granted service connection for CAD and assigned a 30 percent rating effective July 2, 2009. The Veteran filed a notice of disagreement (NOD) as to the rating assigned and the effective date of the grant of service connection. An August 2011 rating decision granted an earlier effective date of October 29, 2008, for the grant of service connection. The Veteran filed an NOD as to the effective date of service connection, and an October 2012 statement of the case (SOC) denied entitlement to an effective date prior to October 29, 2008, for the grant of service connection for CAD. The Veteran did not file a timely Form 9 substantive appeal and no new and material evidence was received within the appeal period; therefore, the August 2011 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. The Board acknowledges that a July 2015 SOC adjudicated entitlement to an earlier effective date for the grant of service connection for CAD; however, the Board finds that this was in error, as the rating decision and NOD cited in the July 2015 SOC relate to the issues of earlier effective dates for the grants of a 100 percent rating for CAD and SMC. In fact, the Board notes that there is no rating decision (and thus no NOD) adjudicating entitlement to an earlier effective date for the grant of service connection for CAD subsequent to the August 2011 rating decision or October 2012 SOC. The filing of an NOD confers jurisdiction on the Board, not the filing of a substantive appeal. See 38 U.S.C. § 7105(a). Accordingly, the Board does not have jurisdiction over the issue of entitlement to an earlier effective date for the grant of service connection for CAD, but the Board has remanded the claims of entitlement to earlier effective dates for the grants of a 100 percent rating for CAD and SMC for issuance of an SOC in compliance with Manlincon v. West, 12 Vet. App. 238, 240 (1999). The Board notes that an October 2010 Form 9 substantive appeal was timely with respect to a June 2010 SOC regarding entitlement to an initial rating in excess of 30 percent for CAD; thus, the issue is properly before the Board. 38 U.S.C. § 1151 Under § 1151, when a veteran suffers a qualifying additional disability or death as the result of hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished by VA, compensation will be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The additional disability or death must have been directly caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. 38 C.F.R. § 3.361(c), (d). This standard will be met if VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or if VA furnished treatment, care, or examination without the informed consent of the veteran. 38 C.F.R. § 3.361(d)(1). Alternatively, compensation will be awarded if additional disability or death was directly caused by an event not reasonably foreseeable. 38 C.F.R. § 3.361(d)(2).   1. Entitlement to compensation benefits under 38 U.S.C. § 1151 for recurrence of NHL The appellant contends that compensation benefits are warranted under 38 U.S.C. § 1151 for recurrence of NHL due to neglectful monitoring of the condition by VA. The Board notes that a claim under 38 U.S.C. § 1151 is merely a separate theory of entitlement to service connection, and the Veteran was service-connected for NHL for the entire appellate period of the instant claim. In other words, the appellant is seeking entitlement to a benefit that Veteran was already in receipt of. Accordingly, the claim of service connection for recurrence of NHL under 38 U.S.C. § 1151 is moot and is dismissed as a matter of law. 2. Entitlement to compensation benefits under 38 U.S.C. § 1151 for dizziness, weakness, and imbalance due to overmedication for CAD After review of the record, the Board finds that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for dizziness, weakness, and imbalance due to overmedication for CAD have not been met. The appellant contends that after a stent placement in November 2010, overmedication for CAD caused the Veteran to experience dizziness, weakness, and imbalance, and that those symptoms resolved in July 2011 when he was taken off some of the medications. The Board concedes that there was an inadvertent medication change made at the time of discharge in November 2010. However, December 2010 treatment notes reflect that the inadvertent medication change was promptly reconciled upon the Veteran’s report of weakness and dizziness. Subsequent treatment records from December 2010 to July 2011 are silent for complaints of dizziness, weakness, and/or imbalance. See 05/05/2013,CAPRI ; 05/16/2012, VA Examination. In May 2012, a VA examiner opined that it is less likely than not that there is an ongoing disability or a worsening of conditions associated with the medication change, or that there was carelessness, negligence, lack of skill, or similar fault on the part of the attending VA personnel. Specifically, the examiner found that the medication change was promptly noted by the primary care physician upon presentation at clinic and proper adjustments were made in December 2010. 05/16/2012, VA Examination. The Board acknowledges that the medication reconciliation occurred in July 2011. However, the Board finds that the weight of the competent and probative lay and medical evidence preponderates in favor of finding that the medication change was acknowledged and resolved in December 2010, which the Board notes was prior to receipt of the claim for such side effects in January 2011. See 01/13/2011, VA 21-4138. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding that the inadvertent change in medication resulted in additional disability in the form of dizziness, weakness, and imbalance during the period on appeal. To the extent that appellant contends that dizziness, weakness, and imbalance are due to service-connected CAD, that contention will be addressed as part of the claim for an increased initial rating for CAD prior to April 2, 2013, which the Board has remanded herein. 3. Entitlement to compensation benefits under 38 U.S.C. § 1151 for chronic neck pain due to misdiagnosis After review of the record, the Board finds that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for chronic neck pain due to misdiagnosis have not been met. The appellant contends that due to a misdiagnosis by VA medical staff, the Veteran suffered chronic neck pain until he had two stents placed in November 2010, which resolved the problem. See 05/16/2012, VA Examination; 08/21/2013, Correspondence. The claim for compensation under 38 U.S.C. § 1151 for chronic neck pain was received by VA in August 2011. 08/11/2011, VA 21-4138. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding an additional disability during the period on appeal. Without competent evidence of additional disability during the period on appeal, the Board must deny the claim. Temporary Total Evaluation 4. Entitlement to a TTE under 38 C.F.R. § 4.30 for treatment requiring convalescence related to a cardiac procedure on November 17, 2010 The appellant contends that a TTE is warranted for CAD based on the need for convalescence under 38 C.F.R. § 4.30 due to a November 17, 2010, cardiac procedure. VA regulations provide for temporary total disability ratings based on convalescence when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. On November 17, 2010, the Veteran underwent a cardiac catheter placement with percutaneous coronary intervention (PIC) for treatment of his service-connected CAD. A discharge note indicated that as a result of the cardiac procedure, the Veteran should avoid heavy lifting and strenuous exercise for six weeks. 11/22/2010, Medical- Government. The medical records indicate that the Veteran worked in construction at the time of the procedure, and the Veteran contended that not being able to do heavy lifting or strenuous exercise prevented him from performing his job in building construction, as heavy lifting and strenuous exercise were unavoidable. 08/21/2013, Correspondence. Accordingly, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran required six weeks to return to a healthy state following the cardiac procedure on November 17, 2010. See Felden v. West, 11 Vet. App. 427, 420 (1998). Six weeks from November 17, 2010, is December 29, 2010. Accordingly, a TTE is warranted from November 17, 2010, to December 31, 2010. See 38 C.F.R. § 4.30. REASONS FOR REMAND 1. Entitlement to an effective date prior to April 2, 2013, for the 100 percent rating for CAD is remanded. 2. Entitlement to an effective date prior to April 2, 2013, for the grant of SMC is remanded. As previously noted, in a July 2014 NOD, the Veteran appealed the effective dates of the grant of a 100 percent rating for CAD and SMC, both effective April 2, 2013. The AOJ has not issued an SOC regarding the earlier effective date claims. As such, the Board has no discretion, and the issues must be remanded for such a purpose. Manlincon v. West, 12 Vet. App. 238, 240 (1999); 38 C.F.R. § 19.9(c). 3. Entitlement to an initial rating in excess of 30 percent for CAD prior to April 2, 2013, is remanded. The Board finds that the claim of entitlement to an initial rating in excess of 30 percent for CAD prior to April 2, 2013, is inextricably intertwined with the claim for an earlier effective date for the grant of a 100 percent rating for CAD, and will defer consideration of that matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).   The matters are REMANDED for the following action: Send the appellant a statement of the case that addresses the issues of entitlement to effective dates prior to April 2, 2013, for the grants of a 100 percent rating for CAD and SMC. If the appellant perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. The claim of entitlement to an initial rating in excess of 30 percent for CAD prior to April 2, 2013, should be returned to the Board after the appellant files a Form 9 substantive appeal to the earlier effective date claims, or the period to appeal the earlier effective date claims has expired (60 days from the issuance of the SOC), whichever occurs first. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel