Citation Nr: 18150288 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 01-02 481 DATE: November 14, 2018 ORDER Service connection for ischemic heart disease (IHD) is denied. An effective date earlier than May 29, 2003, for the grant of service connection for anemia is denied. An effective date earlier than May 29, 2003, for the grant of service connection for hemorrhoids is denied. REMANDED Service connection for an acquired psychiatric disorder, to include anxiety and depression, is remanded. An initial rating for anemia in excess of 10 percent prior to November 6, 2009, and in excess of 30 percent thereafter, is remanded. An initial rating in excess of 10 percent for hemorrhoids is remanded.   FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of IHD. 2. The Veteran’s initial claim of service connection for anemia and hemorrhoids was received on May 29, 2003. CONCLUSIONS OF LAW 1. The criteria for service connection for IHD have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an effective date earlier than May 29, 2003, for an award of service connection for anemia, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date earlier than May 29, 2003, for an award of service connection for hemorrhoids, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to April 1971. The case is on appeal from February 2000, March 2000 and March 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In June 2005, the Veteran testified at a Board hearing. In May 2010, the Veteran was offered the opportunity to have an additional Board hearing, which he declined. In the March 2018 substantive appeal, the Veteran requested another Central Office Board hearing. He withdrew this request one month later in April 2018. He reiterated this withdrawal in September 2018. The current claims have a long appellate history. The Veteran’s psychiatric claim was denied by the Board in June 2013. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a March 2014 Order, the Court granted a March 2014 joint motion for partial remand (JMR). The Board’s June 2013 denial was vacated and remanded to the Board. Thereafter, in September 2014, the Board remanded both present claims for further development. The Veteran has submitted evidence suggestive of anxiety and depression diagnoses. Therefore, the Board has recharacterized the psychiatric claim accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes additional evidence was submitted following the most recent February 2018 supplemental statement of the case (SSOC) and March 2018 SOC. This additional evidence is either not relevant or is cumulative and duplicative of that already of record. Thus, a remand for another SSOC is not necessary for the claims decided herein. See 38 C.F.R. § 20.1304(c). The Board has reviewed the evidence of record, but has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). SERVICE CONNECTION Service connection for ischemic heart disease (IHD). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, 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’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). These diseases include IHD, defined as coronary artery disease (CAD) and acute, subacute, and old myocardial infarction. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Analysis The Veteran contends that he has IHD due to herbicide exposure during service in Vietnam. In a September 2014 statement, the Veteran stated during his service aboard the USS Duluth, there were numerous times when his ship entered harbors and inland waterways. He indicated he and other crewmembers went ashore to deliver supplies. He stated he also went ashore in Da Nang harbor to protect the area during a Vietnamese counter-offensive attack. The Board finds the Veteran’s statements competent and consistent with his military personnel records. Similarly, in December 2014, the RO confirmed that the Veteran’s exposure to herbicides is conceded, as he went ashore and entered Vietnam during his service aboard the USS Duluth. Therefore, the Veteran is presumed to have been exposed to herbicide agents while serving in the Republic of Vietnam and IHD is presumptively caused by such exposure as long as there is no affirmative evidence to the contrary. See 38 C.F.R. § 3.309(e). Thus, the only remaining issue is whether the Veteran has a current diagnosis of IHD. The Veteran was afforded an August 2003 VA examination in which the examiner indicated the Veteran had a history of anemia, resulting in high output heart failure. He stated this resulted in dilation of mitral valve annulus, and mitral regurgitation requiring mitral valve repair with a prosthetic annulus. He noted cardiomegaly indicated compensated congestive heart failure. A September 2003 medical record indicated the Veteran underwent open-heart surgery in July 2003 for the disabling mitral valve heart condition. The physician further noted the Veteran’s mitral heart condition and resulting disabling heart failure is reasonably certain to continue throughout his life. A September 2011 VA treatment record indicated while the Veteran has a past history of valvular heart disease, examination revealed no evidence of ischemia or infarction. The examiner noted a nuclear stress test from November 2009 was determined normal. The Veteran has submitted significant lay evidence in support of his claim for service connection for IHD, including statements from September 2011 and October 2014. These statements suggest he was exposed to herbicides and currently suffers from IHD. He stated in a September 2011 statement that he received treatment for stable angina (chest pain upon exertion) which was suspected to be due to spasm of his coronary arteries. He indicated he has suffered from angina (chest pain) since the 1990’s. The IHD claim was remanded by the Board in February 2012 and September 2014 for further development, including a VA examination to determine if the Veteran has an established diagnosis of IHD. The Veteran was afforded a May 2016 VA examination in which the physician concluded the Veteran does not have IHD. She reviewed and addressed the Veteran’s medical history dating back to the 1990’s, including his 2003 mitral valve repair procedure and related medical documentation. She noted his documented heart conditions, including mitral valve repair, do not qualify as IHD. The examiner stated the Veteran suffers from chest pain symptoms and has different potential chest pain etiologies, as well as the presence of esophageal spasm, a well-known cause for atypical chest pain. She indicated the mere presence of atherosclerotic heart disease on an angiocardiogram would not be sufficient to meet the criteria for IHD. She stated the Veteran’s documented “angina” is a non-specific term that is also commonly utilized for chest pain symptoms from “any” etiology. She further found that coronary artery vasospasm and vasospastic angina are not substantiated for the Veteran. The examiner went on to report the Veteran’s medical records document the absence of ischemic EKG changes during and proximate to the Veteran’s chest pain episodes. She noted his Nitrate-responsive chest pain is not specific for vasospastic angina or IHD. She indicated the medical records support normal coronary arteries on the Veteran’s multiple cardiac catheterization and tests, with no signs of spasm, atherosclerotic blockages or plaques. She took note of recent VA treatment records, including a significant February 2016 CT scan of the Veteran’s heart which revealed normal findings and no signs of cardiac ischemia. Similarly, she stated, the most clinically significant finding within a May 2016 record described “diffuse thickening of the esophagus” and recommended GI consult and endoscopy. She concluded, “the preponderance of medical evidence goes against a condition of IHD of any type.” The Board finds the May 2016 VA examination the most persuasive and probative evidence of record. Her opinion was based on accurate facts and a thorough review of the record, including the diagnostic testing. Her opinion is based on established medical principles, as well as more than 25 years as a Board-certified physician in internal medicine. Moreover, in her finding that the Veteran does not have a diagnosis of IHD, she provided a complete rationale, as well as clear conclusions with supporting data for her medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board notes there is not an adequate medical opinion of record establishing an IHD diagnosis. The Board acknowledges the Veteran’s lay statements and his attempt to establish a diagnosis of IHD. Further, the Board sympathizes with the symptoms reported, including ongoing chest pain. However, IHD is an internal and highly complex condition and the Veteran is not competent to diagnose the disorder. Thus, the Board finds a diagnosis of IHD requires an opinion from a medical professional and is beyond the expertise of a layperson. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). Therefore, the most probative evidence of record is the May 2016 VA examination report from an internal medicine physician. In short, based on review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for IHD. The claim is not substantiated as there is a lack of diagnosis of IHD. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran was exposed to herbicides during his service in Vietnam, his service connection claim must be denied since he has no current diagnosis of IHD. The claim for service connection for a psychiatric disorder is remanded below, but such development has no impact on the IHD claim decided herein. EARLIER EFFECTIVE DATE An effective date earlier than May 29, 2003, for service connection for anemia and hemorrhoids. Legal Criteria Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2)(i). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155 (2014). Although VA has amended the claims filing process to require the filing of proper standard forms, the “informal claim” provisions are for proper application given the time period in which the Veteran’s claim was filed. VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Analysis The Veteran contends that he is entitled to effective dates prior to May 29, 2003, for the award of service connection for anemia and hemorrhoids. The claims were initially granted in the March 2016 rating decision. The RO awarded the Veteran service connection from May 29, 2003. The Veteran submitted a June 2016 notice of disagreement challenging the effective date of the awards. There is an earlier claim for anemia. For example, the Veteran wrote in March 2000 that there was a causal connection between a claimed valvular regurgitation condition and several other medical conditions, including anemia. He identified his medical conditions as secondary to a separate condition for which he was seeking direct service connection. In a February 2001 correspondence, the indicated that in March 1984, he received an incompatible blood transfusion from a VA Medical Center. He stated the transfusion caused a severe reaction and he was not notified of the possible side effects. He noted the treatment caused an autoimmune disorder which resulted in hemolytic anemia, as well as valvular heart disease. He specifically stated he has anemia related to the noted blood transfusion and that he suffers from symptoms of fatigue, weakness, shortness of breath and heart palpitations. The Veteran similarly submitted a May 2001 statement in which he indicated that the 1984 blood transfusion clearly resulted in his valvular heart problem and anemia condition. He provided the statement in connection with his 1151 claim for benefits. A March 1984 medical record was submitted which showed the blood transfusion and noted the Veteran had anemia due to blood loss, as well as a history of hemorrhoids. The Board notes in a July 2002 rating decision, the RO denied the Veteran’s claim for compensation under 38 U.S.C. § 1151 for residuals of blood transfusion, claimed as delayed hemolytic transfusion reaction, with anemia and valvular heart condition. Thereafter, the Veteran submitted a May 2003 statement in which he claimed service connection for gastrointestinal bleeding and secondary chronic anemia. After a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an effective date earlier than May 29, 2003, for the grant of service connection for anemia and hemorrhoids. Although the Veteran filed an earlier claim of service connection for anemia, the instant claim of service connection was granted as second to hemorrhoids. hemorrhoids was not service-connected prior to May 29, 2003. Thus, as a matter of law, the effective date for the service connection for the secondary condition cannot be any earlier than the effective date for the award of service connection for the primary disability. See DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). Further, there is no indication in the record of a claim for service connection for hemorrhoids earlier than May 2003. Additionally, the Board acknowledges the medical evidence suggesting anemia and hemorrhoids prior to May 29, 2003. However, even if the disorders were shown in medical records at an earlier time, the mere presence of medical evidence does not establish an intent to seek service connection. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) (“[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised.”). Therefore, the preponderance of the evidence is against the claims for an earlier effective date than May 29, 2003, for the award of service connection for anemia and hemorrhoids. As such, the benefit-of-the-doubt doctrine is not applicable and the claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, an earlier effective date is not warranted for the claims. The claims for increased ratings for hemorrhoids and anemia are remanded below, but such development has no impact on the earlier effective date claims decided herein. REASONS FOR REMAND Service connection for an acquired psychiatric disorder, to include anxiety and depression. The Veteran contends that he currently has a psychiatric disorder related to his service-connected hemorrhoids, or another service-connected disability. Alternatively, he asserts a psychiatric disorder is related to service, including his exposure to contaminated water at Camp Lejeune. The Veteran’s personnel records confirm he was stationed at Camp Lejeune and he has indicated that he has a psychiatric disorder linked to the neurotoxins found in the contaminated Camp Lejeune drinking water. He submitted medical literature in support. As noted, in June 2013, the Board denied the Veteran’s claim for service connection for a psychiatric disorder. In March 2014, the Court vacated the decision and remanded the claim back to the Board. In September 2014, the Board remanded the psychiatric claim for further development. The Veteran was afforded a February 2017 VA examination in which the examiner indicated no psychiatric diagnosis could be diagnosed. He addressed the Veteran’s reports of anxiety and depression throughout the record, but found the Veteran does not meet the DSM-5 criteria for a mental disorder at this time. He stated while the Veteran was diagnosed with adjustment disorder with anxiety and depressed mood in a 2010 VA examination, the anxiety and depression appear to have resolved. Thereafter, the Veteran submitted a March 2017 statement in which he indicated he disagrees with the conclusions of the VA examiner. He reported he has had psychiatric diagnoses established previously, including chronic anxiety and neurosis, which are moderate to severe. He further notes his anxiety is linked to his service-connected anemia. The Board finds that another VA psychiatric examination is required to determine the nature and etiology of any diagnosed psychiatric disorder. The examiner must adequately address if a current psychiatric diagnosis is established, or if there has been a psychiatric diagnosis recently, and the etiology of such. Increased ratings for anemia and hemorrhoids. As noted above, the Veteran’s claims for service connection for hemorrhoids and anemia were granted in the March 2016 rating decision. He was awarded a 10 percent rating for anemia from May 29, 2003 to November 5, 2009, and a 30 percent rating thereafter, as well as a 10 percent rating for hemorrhoids from May 29, 2003. In the June 2016 notice of disagreement, the Veteran indicated his disabilities are more severe than the assigned ratings. He stated that his anemia warrants an increased rating as his hemoglobin was found to be 5gm/100ml, with a finding of cardiac failure and cardiomegaly. He also asserted that he suffers from severe blood loss due to chronic bleeding hemorrhoids. The Veteran’s most recent VA examination for his hemorrhoids was in August 2012 and there has not been a VA examination to assess his service-connected anemia. Thus, as he has reported worsening symptoms for his hemorrhoids and anemia, the Board finds he should be afforded a new VA examination on remand to determine the current severity of his service-connected hemorrhoids and anemia. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and etiology of any current psychiatric disorders. The examiner must address each of the following: (a.) The examiner should clearly state if a psychiatric disorder is currently diagnosed. If no current psychiatric disorder is diagnosed, the examiner must discuss all prior diagnoses and explain why they were either invalid or when they resolved. (b.) For each diagnosed psychiatric disorder, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder was caused or aggravated by a service-connected condition, including hemorrhoids. (c.) If not, the examiner should address whether it is at least as likely as not a diagnosed psychiatric disorder had its onset during, or is otherwise causally related to, service, to include exposure to contaminated water at Camp Lejeune. 2. Schedule the Veteran for a VA examination with an appropriate medical profession to determine the nature and severity of his service-connected hemorrhoids and anemia. In doing so, the examiner should provide a retrospective medical opinion, to the extent possible, as to the severity of the Veteran’s hemorrhoids and anemia since 2003. He or she should discuss whether the disabilities have increased in severity during the appeal period. If the examiner cannot provide a retrospective opinion, he or she must make clear that all relevant, procurable data was considered in forming the opinion. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel