Citation Nr: 18149281 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-26 318 DATE: November 9, 2018 ORDER Service connection for 10th and 11th rib fractures, claimed as chest injury, is granted. An effective date prior to February 6, 2013, for the grant of service connection for coronary artery disease, with myocardial infarction, is denied. A disability rating of 100 percent for coronary artery disease, with myocardial infarction, is granted. REMANDED Service connection for gastroesophageal reflux disease (GERD) is remanded. Service connection for dysphagia, claimed as a throat condition or cancer and peripheral neuropathy of the throat, and claimed as due to Agent Orange exposure, is remanded. Service connection for a lung disorder, including benign lung nodules, is remanded. Service connection for a skin disorder, claimed as jungle rot on the hands, legs, and arms, is remanded. FINDINGS OF FACT 1. The Veteran’s 10th and 11th rib fractures began during active service. 2. In a December 2013 rating decision, the RO granted service connection for coronary artery disease, and established an effective date of February 6, 2013. 3. Giving the Veteran the benefit of the doubt, his coronary artery disease is manifested by METs of 3 resulting in dyspnea, fatigue and angina. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of right rib fractures have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for an effective date prior to February 6, 2013, for the grant of service connection for coronary artery disease have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.400 (2017). 3. The criteria for a 100 percent disability rating for coronary artery disease have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from December 1969 to September 1972. Although the Paralyzed Veterans of America (PVA) represent him, the Veteran has specified, including in a September 2018 correspondence, that he did not wish for the PVA to represent him before the Board of Veterans Appeals (the Board or BVA). As such, they are not considered his representative before the Board. Although the Veteran submitted evidence regarding peripheral neuropathy claims in October 2018, the Board notes that he has previously withdrawn those claims regarding the upper extremities. In an April 2018 Board decision, the Board dismissed claims for right and left upper extremity peripheral neuropathy. As such, those claims are not before the Board. To the extent that he may be claiming that peripheral neuropathy is the cause of dysphagia, that matter will be addressed in the Remand portion of this decision. The Veteran also has additional claims still undergoing RO action, including claims for service connection for right and left-hand arthritis and increased ratings for the cervical and lumbar spine. As the RO is still developing such claims, they are not before the Board. The Board notes that the Veteran has been in receipt of a 100 percent disability rating since September 1992. He is also already in receipt of special monthly compensation, effective since February 2013. 1. Service connection for rib fractures, claimed as chest injury. The Veteran during service he had a chest injury. The Board concludes that the Veteran has a current diagnosis of an old left posterior 10th and 11th rib fractures that is related to in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A February 1971 service treatment record documents that the Veteran had injured his right ribs a few days previously. The examiner noted tenderness over the 11th rib and diagnosed a suspected fracture, though X-ray was unable to see the fracture. The Veteran’s rib cage was subsequently taped. An October 2011 VA chest CT diagnosed the Veteran with old posterior 10th and 11th rib fractures, showing that the Veteran has a current diagnosis. Given the in-service findings of possible rib fracture and the post-service finding of old rib fracture, and giving the Veteran the benefit of the doubt, the Board finds that service connection for 10th and 11th rib fractures is granted. 2. Entitlement to an effective date prior to February 6, 2013, (including from September 17, 1972) for coronary artery disease. The Veteran contends that an effective date of September 17, 1972 (following his separation from service) is warranted for the grant of service connection for coronary artery disease. He contends that within a year of his separation from service, he filed a claim for service connection for a heart disorder. In general, for disability compensation for service connection, unless the claim is received within one year of the Veteran’s discharge from service (in which case an effective date of the day after separation could be established), the effective date is the “date of receipt of claim, or date entitlement arose, whichever is later [emphasis added].” 38 C.F.R. § 3.400(b)(2)(i). See also 38 U.S.C. § 5110(a) (“Unless specifically provided otherwise..., the effective date of an award based on an original claim [or] a claim reopened after final adjudication... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”). On February 6, 2013, VA received the Veteran’s first and only claim for service connection for a heart disorder. In a December 2013 rating decision, the RO granted service connection for coronary artery disease with myocardial infarction, effective February 6, 2013 – the date of receipt of claim. In a September 2013 correspondence, the Veteran claimed that he had filed a claim dated October 19, 1972, as he had heart symptoms at that time. In a September 2013 lay statement, J.F. reported that the Veteran had lived and worked with him and that he had taken the Veteran to the VA emergency room in the fall of 1972. He had severe chest, shoulder, and back pain at that time. In support of his contention, the Veteran has submitted a copy of a “VETERAN ADMINISTRATION APPLICATION FOR MEDICAL BENEFITS” form dated October 19, 1972. He also submitted a medical record dated October 19, 1972. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 79 Fed. Reg. 57,660, 57,695 (Sept. 25, 2014) (to be codified at 38 C.F.R. § 3.155(a)). The Veteran’s alleged September 1972 claim would have taken place prior to the required application form as of March 24, 2015. The Board will consider whether the October 1972 documents could be considered an informal claim for service connection for a heart disorder. Prior to March 24, 2015, under 38 C.F.R. § 3.155, an informal claim could be any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs. The informal claim must identify the benefit sought. The Board finds that the October 1972 “VETERAN ADMINISTRATION APPLICATION FOR MEDICAL BENEFITS,” was clearly an application for medical benefits and not for disability benefits. Indeed, on that application the Veteran specifically denied receiving VA compensation or pension, indicating knowledge of the difference between compensation and medical benefits. As noted above, an informal claim must identify the benefit sought. The October 1972 application clearly identified that the benefit sought was medical benefits – as indicated by the term medical benefits being in the title of the form. There was no indication of any disability or compensation benefits sought at that time. The Board acknowledges that in some very specific circumstances, prior to March 24, 2015, and under 38 C.F.R. § 3.157, report of examination or hospitalization could have been considered an informal claim. However, that would be possible in very specific circumstances for increased rating claims or claims to reopen previously denied claims. Even if the Veteran’s records would have indicated he sought to file a compensation claim, as his claim would not have fallen under either category, the October 1972 medical report cannot be deemed an informal claim. The Board further notes that neither the October 1972 application or medical record clearly indicated that the Veteran had a heart disorder at the time. Although the Veteran claims that he had the same symptoms in October 1972 as his subsequent heart disorder, the medical record does not present such a clear picture. Rather, the record indicated that the Veteran complained of headaches and shakes, and a burning feeling in the upper substernal area for 10 days. He was diagnosed with a “Viral Infection?” and prescribed Tylenol and Maalox. The doctor indicated that if not better, the Veteran should return for a Malaria smear. The medical professional did not diagnose a heart disorder and appears to have considered the Veteran’s reports of upper substernal pain to be a viral infection or to be treated with an antacid. Furthermore, the record does not support finding that the Veteran has had chronic heart symptoms since service. Even if, for the sake of argument, the October 1972 documents could be considered an informal claim, there is no indication that the Veteran had a heart problem in October 1972, much less the same one for which he currently has service connection. Although the Veteran claimed, in July 2013, to have had the same symptoms in October 1972 as in July 27, 2008, a comparison of the records does not bear out such a claim. The July 27, 2008, San Luis Valley Regional Medical Center records show that the Veteran complained of right arm pit pain 12 hours previously – clearly indicating that it developed recently and had not been present since 1972. Furthermore, the Veteran specifically denied having burning pain, which is how he had described his pain in 1972. He also denied having a headache, which he had reported having in 1972. Moreover, the Veteran did not receive a diagnosis of a heart disorder by a medical professional until decades after 1972, though he underwent medical treatment for various disorders during those decades. In the years following October 1972, the Veteran submitted many claims for service connection for various other disorders. However, he did not file a claim for a heart disorder until February 6, 2013. In February 2015, the Veteran claimed that his 1972 effective date should be granted because he was a Nehmer class member. A Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease, including coronary artery disease. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. In this case, the record reflects that the Veteran served in Vietnam, and he was granted presumptive service connection for coronary artery disease based on exposure to herbicides during such service. As such, he is a Nehmer class member. However, the Veteran was not denied compensation for coronary artery disease between September 25, 1985, and May 3, 1989. Likewise, he did not submit a claim for service connection for such condition between May 3, 1989, and August 31, 2010—the date on which the liberalizing law that added coronary artery disease as a disease presumptively due to in-service exposure to herbicides became effective. Therefore, the effective date for the grant of service connection for his heart disability must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4) As noted above, under 38 C.F.R. § 3.400, the effective date is the “date of receipt of claim, or date entitlement arose, whichever is later [emphasis added].” An effective date prior to February 6, 2013, the effective date VA granted for service connection for coronary artery disease, is denied. 3. Entitlement to an increased rating for coronary artery disease with myocardial infarction. The Veteran contends that his coronary artery disease warrants a 100 percent disability rating (from his current 30 percent disability rating), because the August 2013 VA examination estimated his METs as 1-3 METs, which he contends is a 100 percent level. Coronary artery disease is rated under Diagnostic Code 7005. For the maximum 100 percent disability rating, the Veteran would need to have chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. There is no evidence of record that indicates that he has chronic congestive heart failure. The August 2013 VA examiner estimated METs as 1-3. The May 2014 VA examiner estimated METs as 3-5. Both VA examiners found that the Veteran was limited both due to coronary artery disease and other disorders. The August 2013 VA examiner found that she could not accurately estimate the percentage due to only the coronary artery disease. The May 2014 VA examiner estimated that his METs level limitation due solely to the heart condition was 40 percent, but that there was insufficient information to provide estimated METs solely on the cardiac condition. Both VA examiners found that the Veteran’s ejection fraction was normal. Although the August 2013 VA examiner found that estimated METs was more accurate than ejection fraction, the May 2014 VA examiner found that ejection fraction was a more accurate measure of cardiac function because the interview based METs were affected by multiple conditions, including non-cardiac condition. Both VA examiners indicated that the Veteran’s estimated METs could be 3 and resulted in symptoms such as dyspnea, fatigue, and angina. Given the relative equipoise of the VA examination findings, the circumstances of this particular Veteran’s situation (including possible effect on his limitation by his multiple service-connected disabilities), and giving the Veteran the benefit of the doubt, the Board finds that a 100 percent disability rating is warranted. REASONS FOR REMAND 1. Entitlement to service connection for (a) dysphagia, (b) GERD, and (c) a lung disorder. In October 2018, the Veteran claimed that to have dysphagia (throat condition) due to combat or Agent Orange exposure. In a January 2013 statement, he reported difficulty swallowing from abnormal nerve or muscle control. He also claimed to have developed GERD from an environment irritant or injury, including Agent Orange. The Veteran’s exposure to Agent Orange has been conceded. He also has current diagnoses of dysphagia and GERD. In a March 2017 VA medical record, the Veteran claimed that the symptoms, including ongoing difficulty and pain with swallowing, started while he was in Vietnam. The provider noted that the most recent evaluation was in 2013, with Barium swallow at that time demonstrating hiatal hernia, Schatzki’s ring, and esophagitis/gastritis. Also, in a November 2013 statement, he claimed to have a current lung disorder due to service, including combat or Agent Orange exposure. Per a July 2013 statement, the Veteran claimed that his lungs were “damaged by the tape job the Vietnam MD performed on my two broken ribs” and that “CTs show possible early cancer.” The Board notes that although the Veteran has claimed that CTs showed possible early cancer, the August 2012 VA medical provider made clear that although the Veteran believed he had lung cancer “there is no evidence of this on CT scan…there is no evidence that he has cancer.” However, his July 2018 problem lists do indicate that he has chronic obstructive lung disease and the August 2013 VA examiner noted an unknown pulmonary/chest condition. Additionally, service treatment records, such as from November 1971, document that the Veteran complained of lower chest pain on deep inspiration. VA examinations are necessary to determine whether the Veteran currently has the claimed disorders due to service. 2. Entitlement to service connection for (d) a skin disorder claimed as jungle rot on the hands, legs, and arms is remanded. A December 1970 service treatment record documents that the Veteran had a diagnosis of jungle rot. The Veteran contends that his current skin disorders are related to such in-service injury. The Veteran, at times, has had findings such as by a March 2016 VA medical provider of no rashes, lesions, or ulcers. However, there was also findings of numerous nevi that appear benign, including a left pre- auricular area brown with dark spots, a painful small flesh colored lesion, and right post-auricular brown irregular with darker spots. He has also received a diagnosis of actinic keratosis in the past. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran has a current skin disorder due to service, including jungle rot. Evidence indicates that there may be outstanding relevant VA treatment records. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following actions: 1. Any unassociated VA medical records should be obtained and associated with the claims file. 2. After the above record development has been accomplished, obtain a VA medical opinion to determine the nature and etiology of any (a) dysphagia, (b) GERD, and (c) lung disorder. If a VA examination(s) is necessary to make any determination(s), schedule the Veteran for an examination(s) by an appropriate clinician. The VA medical opinion provider must opine whether: (a) dysphagia (claimed as a throat condition or cancer and peripheral neuropathy of the throat), (b) GERD, and/or (c) lung disorder (including benign lung nodules and claimed as cancer) is at least as likely as not related to an in-service injury, event, or disease, including conceded Agent Orange exposure or combat. For the lung disorder, the VA medical opinion provider must also opine as to whether it is at least as likely as not (1) proximately due to or (2) aggravated beyond its natural progression by the service-connected disability of fractured 10th and 11th ribs. The claims file should be reviewed, and a full explanation for every opinion provided should be provided. As noted in the Remand above, the Veteran has provided lay statements as to his claimed symptoms and received various diagnoses. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin disorder, claimed as jungle rot. The claims file should be reviewed. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service finding of jungle rot. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio